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Summary trials: remain unchanged in more than 300 years.

MILITARY SUMMARY TRIALS are ancient, outdated and unfair, and they are insulated from judicial scrutiny. This article will examine why immediate reform is necessary to this system of "justice," not only to strengthen our military justice system, but to bring it in line with contemporary Charter-protected rights and values, and to catch up to the modernizations that have already swept across Europe and beyond.

HISTORY OF SUMMARY TRIALS

In the United Kingdom, the control of English feudal armies was once exercised under courts of chivalry, curia militaris, which were brought to England by William the Conqueror in 1066. Over the next centuries, Articles of War came of age authorizing military courts to apply discipline in deployed operations in a prompt and efficient manner. The requirement for 'summary proceedings' (which later became to be known in the United Kingdom and Canada as summary trials) was formally recognized by the British Parliament with the passage of the Mutiny Act in 1689.

Two centuries later, summary trials still existed under British military law and became part of Canadian legislation when Parliament passed An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868] to govern Canada's armed forces.

Since that time, summary trial policies have remained frozen in time. An anachronism of a bygone era, which remains incongruous and discordant with the important reforms in Canadian law brought upon by the enactment of the Canadian Bill of Rights in 1960, the Canadian Human Rights Act in 1997, the Charter of Rights and Freedoms in 1982, and the Canadian Victims Bill of Rights in 2015.

NEARLY 30 SUMMARY TRIALS PER WEEK

In 1950, Parliament enacted a comprehensive National Defence Act which included in a single statute all legislation related to the Department of National Defence, the Royal Canadian Navy, the Canadian Army and the Royal Canadian Air Force.

Importantly the Act outlines a uniformed process for administering military justice in the three services. It also sanctioned the existence of a two-tier system justice: summary trials and courts martial.

Today, summary trials continue to dominate military justice in Canada. Over the past decade, there has been an average of 1,500 summary trials per year--compared with a mere 63 courts martial. The conviction rate for summary is greater than 90 per cent.

NO LEGAL RIGHTS

A summary trial is typically presided over by an accused's commanding officer (CO), who is already hierarchically involved as he or she exercises command over all of his subordinates, including the accused. Prior to the commencement of the summary trial, the CO, through the normal reporting of incidents up the chain of command, is also generally cognizant of the circumstances surrounding the alleged offence(s). This is in sharp contrast with a civil court where the judge must always be independent and unaffiliated with the accused and, therefore, relies on legal counsel and the calling of witnesses to present evidence.

Furthermore, in a summary trial an accused has no right to legal counsel and the trial process is not governed by any rules of evidence. Consequently, there is often full reliance on hearsay and opinion evidence. In addition, the rules against self-incrimination, drawing adverse inference from the accused's silence, and spousal privilege do not apply at summary trial. Further, at summary trial, an accused may not raise Charter arguments or ask for the recusal of the presiding officer. There are no transcripts of proceedings for summary trials. Finally, there is no right to appeal a verdict or a sentence that may not only deprive the accused of his liberty and a criminal record ('true penal consequences') but reduce him in rank with the consequential impact on his professional standing and reputation as well as his salary and his retirement annuity.

In recent years, the European Convention of Human Rights (ECFIR) has ruled that summary proceedings are problematic. This has caused some countries, including the United Kingdom and Ireland, to completely overhaul their summary trials process. These judicial rulings have also brought the summary trial process into compliance with the ECFIR, which held that no one may be deprived of his liberty, except by a competent and impartial tribunal and that the accused may, on a criminal charge, declare his right to a fair and public hearing by an independent and impartial tribunal as established by law.

These protections are equally guaranteed under Canada's Charter of Rights and Freedoms. For this reason, we know of only one reason why similar reforms have not been incorporated in Canada's military justice system: continuing military recalcitrance to democratic reforms and its tacit acceptance by the political class.

NO JUSTICE FOR AN ACCUSED

The constitutional validity of military summary trials has been debated for years. In 2003, the Right Honourable Antonio Lamer, in his first independent review of the National Defence Act, criticized the military summary trial system and recommended significant reforms.

In 2012, the Standing Committee on National Defence heard several days of testimony on this issue during which the antiquated summary trial system came under heavy criticism. In 2013 and 2014, articles published in The Hill Times refer to the Canadian summary trial system as "Victorian." As will be shown, to refer to military summary trials as Victorian may be too kind considering that, year in and year out, up to one out of every 44 soldiers is subject to this form of military "justice" whereby evidentiary and procedural rules violate almost every basic rights of an accused in Canada.

In 2015, Mrs. Anne London-Weinstein, a criminal lawyer and member of the National Association of Criminal Defence Lawyers, published an article denouncing summary trials as unconstitutional. This can be found in the proceedings of the International Military Law Conference which took place at the University of Ottawa on November 13, 2015.

To our dismay and despite such repeated sound and public objections to the fairness of summary trials, nothing has been done to remedy the known and existing injustices.

TRUE PENAL CONSEQUENCES

A conviction at a summary trial can result in a deprivation of liberty and a criminal record, which would necessarily follow a soldier after he or she has left the military. For these reasons, London-Weinstein describes summary trials as lacking in constitutional protections and questions the independence of such tribunals. We agree fully.

It is unthinkable that a period of detention of up to 30 days could be imposed by a person with no formal legal training whatsoever--particularly so when an accused has no right to be represented by legal counsel and that there are no rules of evidence and no appeal to a judicial tribunal. Yet this is exactly what can occur through summary trial proceedings.

SUMMARY TRIALS ARE NEVER ADVISABLE

During our legal practices, never once have we recommended that a soldier subject himself or herself to this one-sided "justice" system, despite assurances from their military superiors that they will be treated fairly. To place such blind faith in a disciplinary mechanism that is so obviously deficient and one-sided is irresponsible.

Military summary trials have been assessed by the European Court of Human Rights as being problematic and outdated, in light of these decisions France, Germany and many other European countries have now abolished summary trials completely. In the United Kingdom the summary trial system has been substantially reformed and appeal rights have been granted.

This leaves Canada simply in the dust and well behind international norms.

Summary trials were conceived during the Early Renaissance period under the reign of Queen Mary II. Like all relics of this period, this antiquated system of justice should be relegated to museums and history textbooks. Unfortunately, the Canadian military stubbornly refuses to accept this, insisting that their proud traditions should be insulated from scrutiny. Respectfully, the world has evolved greatly since the 17th century, and it's high time for the military justice system to evolve as well.

COL. (RETD) MICHEL DRAPEAU (left) practices law in Ottawa, with a focus on military law. JOSHUA JUNEAU (right), an associate at MDLO, was called to the bar of Ontario in 2012.
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Title Annotation:LAW AND ORDER
Author:Drapeau, Michel W.; Juneau, Joshua M.
Publication:Esprit de Corps
Date:May 1, 2016
Words:1346
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