V. Summary Trials

369. The military justice system tries cases by courts martial or by summary trials. Whether a case will be tried by court martial or summary trial depends on the rank of the accused, the nature and seriousness of the service offence and, in many cases, the election of the accused.
370. Summary trials “allo[w] for relatively minor service offences to be tried and disposed of quickly at the unit level”.^{Footnote 397} They are presided over by members of the chain of command (“presiding officers”).^{Footnote 398} In most cases, the presiding officers are the commanding officers of the accused or delegated officers within their command. Presiding officers are neither lawyers nor judges, but they receive special training and certification by the JAG.
371. Proceedings at summary trial differ considerably from proceedings before courts martial. The accused has no right to counsel,^{Footnote 399} but is entitled to the assistance of “an officer or, in exceptional circumstances, a non-commissioned member above the rank of sergeant”^{Footnote 400} (“assisting officers”). There is no prosecutor. The presiding officer calls the evidence against the accused, who may introduce evidence for the defence. The Military Rules of Evidence^{Footnote 401} do not apply.^{Footnote 402} To find the accused guilty and pass sentence, the presiding officer must be satisfied that the evidence proves the accused guilty beyond a reasonable doubt.^{Footnote 403}
372. The powers of punishment of presiding officers are also more limited than the powers of military judges at courts martial.^{Footnote 404} Presiding officers cannot order that the accused be dismissed from Her Majesty’s service or imprisoned, but they can impose other significant sanctions. For example, presiding officers who are commanding officers can order the detention of the accused for a period not exceeding thirty days, a reduction of rank by one rank, or the imposition of a fine not exceeding the accused’s basic pay for one month.^{Footnote 405} And some convictions at summary trials result in criminal records.^{Footnote 406}
373. Various concerns about summary trials were brought to my attention by external commentators and by several members of the Canadian Armed Forces (“CAF”) who attended my town hall meetings. Most concerns related to the presiding officers’ independence and impartiality, the sufficiency of their training or the extent of their understanding of the applicable rules. Another concern was that presiding officers have unfettered access to legal advisers from the Office of the JAG (“OJAG”) during summary trials, which was perceived by many members of the CAF as unfair to the unrepresented accused.^{Footnote 407} Assisting officers were often described as having insufficient training, resources or available time to properly perform their functions, despite their best intentions and efforts. Finally, some commanding officers were of the view that summary trials have become increasingly complicated and time-consuming.^{Footnote 408}
374. In their current form, summary trials do not offer “a fair and public hearing by an independent and impartial tribunal” as guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”). Presiding officers lack independence from the chain of command and may have had past encounters with the accused, since they generally belong to the same unit. The relevant question, which the courts have not answered,^{Footnote 409} is whether the limits imposed by the summary trial process on the constitutional rights of the accused can be justified.^{Footnote 410}Previous independent reviews of the military justice system concluded that “the summary trial process is likely to survive a court challenge as to its constitutional validity”.^{Footnote 411} But authors have expressed a contrary view.^{Footnote 412} I do not find it necessary to resolve the constitutional issue. The mentioned concerns justify several recommendations on grounds of sound public policy, regardless of what the Charter may minimally mandate.
375. Before I explain my recommendations, I must acknowledge the peculiar timing of this Report with respect to summary trials. Once Bill C-77^{Footnote 413} fully comes into force, summary trials will be replaced by “summary hearings”. Summary hearings will resemble summary trials, but they will be stripped of the penal and criminal aspects which currently trigger the protection of section 11(d) of the Charter.
376. To punish minor disciplinary breaches, new “service infractions”, triable only by summary hearings, will be enacted. Presiding officers will lose their power to impose detention for a period not exceeding thirty days,^{Footnote 414} and no criminal records will result from summary hearings. Also, all charges for service offences will be heard exclusively by courts martial.
377. The summary hearing process will be simplified by removing the usual safeguards of criminal law from its operation. The applicable standard of evidence will become the balance of probabilities,^{Footnote 415} and it will be possible to compel the accused to testify.
378. I have been advised that the summary hearing process may not be implemented for several years and I have been given no firm or even target date for its implementation. Moreover, once the relevant provisions of Bill C-77 are implemented, the summary trial process will still continue to apply to all charges laid before their coming into force.^{Footnote 416} Therefore, I believe recommendations are still pertinent.
379. My recommendations are aimed at addressing the current shortcomings of the summary trial process, but there are sound policy reasons to continue to apply most of them in the context of summary hearings, as I will explain below.
380. Specifically, my recommendations concern the accused’s election for trial by court martial, the confidentiality of the discussions between the accused and the assisting officers, the training of presiding and assisting officers as well as the review of summary trials proceedings.
1. Accused’s Election to be Tried by Court Martial
381. Normally, “an accused person who is triable by summary trial has the right to elect to be tried by court martial”.^{Footnote 417} Before commencing a summary trial, the presiding officer must cause the accused “to be informed of that right and given a reasonable period of time, that shall be in any case not less than 24 hours, to […] decide whether to elect to be tried by court martial; and consult legal counsel^{Footnote 418} with respect to the election”.^{Footnote 419} By the time the accused is asked to make an election, the accused must have received disclosure of the evidence from the presiding officer.^{Footnote 420}
382. The exceptions are as follows: A person triable by summary trial charged with insubordinate behaviour,^{Footnote 421} quarrels and disturbances,^{Footnote 422} absence without leave,^{Footnote 423} drunkenness^{Footnote 424} or, in certain cases, conduct to the prejudice of good order and discipline^{Footnote 425} cannot elect to be tried by court martial if the presiding officer “concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused person were found guilty of the offence”.^{Footnote 426} From 2015-2016 to 2019-2020, non-electable offences represented 72.4 per cent of all service offences tried at summary trials.^{Footnote 427}
383. Several aspects of the disclosure and election processes at the unit level limit military defence counsel’s ability to provide proper legal advice on an election.^{Footnote 428} At this stage, legal advice is provided by telephone. Therefore, military defence counsel do not have access to the disclosure materials and must rely on general information given to them by the accused or their assisting officer. This can present challenges. For example, assisting officers often do not have legal knowledge and may consequently misunderstand or misinterpret the information disclosed. Alternatively, they may omit important aspects of the case.
384. Moreover, military defence counsel have to take into account that “the charges quite regularly change through the referral process and, if the charges don’t change, the particulars do”.^{Footnote 429}If they advise an accused to elect trial by court martial, the Director of Military Prosecutions may pursue charges of greater seriousness than those initially faced at the summary trial level.
385. Once Bill C-77 comes into force, this problem will disappear as the accused will no longer have to make an election. In the meantime, military defence counsel’s access to the disclosure should be enhanced. Their legal expertise will allow them to properly understand the information and materials disclosed and to anticipate the additional charges that are at risk of being preferred at courts martial.
386. In all but exceptional cases, the disclosure should be provided in electronic format to the accused and to the assisting officer. If the accused wishes to obtain legal advice from the Directorate of DCS, the disclosure should also be provided to military defence counsel.
387. The minimum delay of 24 hours to consult legal counsel and decide on the election appears overly restrictive. I have been informed that it may be extended. To avoid excessive reliance on discretion in this regard, I recommend that an extended delay be prescribed directly in the QR&O.
     • Recommendation #44. The information prescribed by subsection 108.15(1) of the Queen’s Regulations and Orders for the Canadian Forces should be provided in electronic format in all but exceptional cases, having regard to the nature of the information and to the exigencies of the service.
     • If the accused decides to consult military defence counsel, the Directorate of Defence Counsel Services should also be provided with a copy of, or given access to, this information.
     • Subsection 108.17(2) of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that the reasonable period of time given to the accused to make an election should in no case be less than 48 hours from the time the accused, the assisting officer and military defence counsel, if applicable, have been provided with a copy of, or given access to, this information.

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2. Confidentiality of the Discussions Between the Accused and the Assisting Officers
388. In 2003, Chief Justice Lamer made the following recommendation:
     • I recommend that amendments to the National Defence Act and the Queen’s Regulations and Orders, as necessary, be made to provide a greater measure of confidentiality between an assisting officer and an accused person. These amendments would address the issue of the compellability of the assisting officers in other proceedings under the National Defence Act, and would impose a duty of non-disclosure on the assisting officer in respect of his or her communications with the accused, except in the limited circumstances required by public policy.^{Footnote 430}
389. His recommendation was not implemented. Currently, the confidentiality of communications between an assisting officer and an accused person is protected neither by statute nor by regulations. The only “measure” which exists consists of a paragraph in the Military Justice at the Summary Trial Levelmanual which states that “[t]he integrity of the assisting officer’s role and the effectiveness of the summary trial process could be adversely affected if an assisting officer is required to disclose communications with an accused”.^{Footnote 431} Therefore, “the communications between an assisting officer and the accused should, for policy reasons, be treated in a manner similar to communications between a lawyer and their client”.^{Footnote 432}
390. But the manual also recognizes that “[a]t law, an assisting officer could be required to reveal the contents of communications overheard between a lawyer and the accused”.^{Footnote 433} It acknowledges that there may be cases in which consideration will be given to “requiring an assisting officer to disclose communications between an assisting officer and an accused”.^{Footnote 434} A loose exhortation in a non-binding manual is clearly insufficient protection. I see no reason not to renew Chief Justice Lamer’s important recommendation.
     • Recommendation #45. Amendments to the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces, as necessary, should be made to provide a greater measure of confidentiality between an assisting officer and an accused person. These amendments should address the issue of the compellability of the assisting officers in other proceedings under the National Defence Act, and should impose a duty of non-disclosure on the assisting officer in respect of communications with the accused, except in the limited circumstances required by public policy.
391. This recommendation will remain applicable in the context of summary hearings, provided that assisting officers continue to be assigned to persons charged with service infractions. The importance of the confidentiality of their communications may in fact become even greater, because persons tried by summary hearings will remain liable to be court-martialled for service offences arising out of the facts that gave rise to service infractions.^{Footnote 435}
3. Training of Presiding Officers
392. Presiding officers are required before assuming their duties to “be trained in the administration of the Code of Service Discipline in accordance with a curriculum established by the Judge Advocate General”, and “certified by the Judge Advocate General as qualified to perform their duties in the administration of the Code of Service Discipline”.^{Footnote 436} The Presiding Officer Certification Training (“POCT”) has been established for this purpose. Success in the POCT leads to a certification which remains valid for five years. After that time, presiding officers are required to renew their credentials by following the Presiding Officer Re-Certification Training (“PORT”), an online course. Update trainings may also be required from time to time.^{Footnote 437}
393. The POCT provides comprehensive training. I am generally satisfied with the breadth of its contents. However, its comprehensive nature is also a cause for concern. Some of the participants in my review suggested that the POCT covers so much ground that it may be hard for most trainees to meaningfully retain the information conveyed to them. While the POCT includes references to the actions to be taken by presiding officers in particular scenarios, it does not include practical exercises, such as moot summary trials, where observers could assess whether presiding officers effectively implement what they have learned. In my view, it would be desirable to include practical exercises of this sort in the POCT. Whether they should be included in the PORT is a more difficult question. The desirability of practical exercises in this context may, for example, depend on the number of summary trials actually conducted by a presiding officer in the preceding five years. ^{Footnote 438} I believe the question is best left to be resolved by the JAG.
     • Recommendation #46. Practical exercises, such as moot summary trials, should be included in the curriculum of the Presiding Officer Certification Training.
     • In the performance of her superintendence over the administration of military justice in the Canadian Forces, the Judge Advocate General should consider the desirability of including practical exercises in the curriculum of the Presiding Officer Re-Certification Training.
4. Training of Assisting Officers
394. In their reports on the military justice system, Chief Justice Dickson, Chief Justice Lamer and Chief Justice LeSage all made comments in relation to the insufficiency of assisting officers’ training.^{Footnote 439} Chief Justice Lamer recommended that “immediately after being asked to act as an assisting officer, the Canadian Forces member be given a standardized package of material […] and then be required to pass a test on the material before being entitled to act as assisting officer”.^{Footnote 440} Chief Justice LeSage recommended that there “be a certification requirement for assisting officers similar to that of presiding officers. The training process of assisting officers ought to include in-person instruction, mock trials, and job shadowing of more experienced assisting officers”.^{Footnote 441}
395. Their recommendations were not implemented. I was informed by the OJAG that “[t]here is no requirement that a member appointed as an assisting officer pass a standardized test prior to executing their duties in this role”.^{Footnote 442} The assisting officers may, at their discretion, have access to two training manuals in the performance of their functions, the Comprehensive Assisting Officer Training Manual and the Guide for Accused and Assisting Officers.
396. A significant number of participants in my review remained of the view that assisting officers have insufficient training, resources or available time to properly perform their functions, despite their best intentions and efforts. The 2018-2019 Summary Trial Survey lends support to this observation. Some assisting officers “reported that they did not feel as though they had adequate knowledge or experience to complete their tasks” or “felt unprepared to be involved in the process”.^{Footnote 443} Several assisting officers recommended a formal training course or “a course which [would] allo[w] them the opportunity to run through some of the required tasks and duties in advance of taking on the position”.^{Footnote 444} A total of 21 per cent of the accused surveyed “disagreed” or “strongly disagreed” “with the statement that their Assisting Officer had been helpful throughout the process”.^{Footnote 445}
397. When I asked the OJAG to provide the rationale for the non-implementation of my predecessors’ recommendations, it took the following position:
     • While enhanced training for assisting officers is desirable, the imposition of a requirement to review a package of material and undergo an examination following their appointment is not conducive to the objective that summary trials proceed swiftly. As assisting officers are chosen by the accused, the need to fulfill these requirements may constrain their ability [to] act, particularly in shorter time periods thus in practice risking limiting the accused’s choice.^{Footnote 446}
398. In my view, these reasons are insufficient to justify maintaining the status quo in relation to the assisting officers’ training. According to the 2018-2019 Summary Trial Survey, a specific assisting officer is requested only in approximately 19 per cent of the cases.^{Footnote 447}
399. I recommend that a formal Assisting Officer Certification Training (“AOCT”) be developed and lead to a renewable certification, in much the same way as the POCT. The AOCT should include practical exercises, such as moot summary trials. Each unit of the CAF should establish a roster of assisting officers who have successfully completed the AOCT. The accused should be invited to select their assisting officers from this roster. They should however maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the AOCT to non-roster appointees in all circumstances where doing so would not be inconsistent with the prompt restoration of discipline at the unit level. Finally, the CAF should ensure that assisting officers are provided with sufficient time, in light of their other duties, to adequately prepare the defence of the accused at summary trials.
     • Recommendation #47. A formal Assisting Officer Certification Training should be developed and lead to a renewable certification, in much the same way as the Presiding Officer Certification Training. The course should include practical exercises, such as moot summary trials.
     • Each unit of the Canadian Armed Forces should establish a roster of assisting officers who have successfully completed the Assisting Officer Certification Training. The accused should be invited to select their assisting officers from this roster. They should however maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the Assisting Officer Certification Training to non-roster appointees in all circumstances where doing so would not be inconsistent with the prompt restoration of discipline at the unit level.
     • The Canadian Armed Forces should ensure that assisting officers are provided with sufficient time, in light of their other duties, to adequately prepare the defence of the accused at summary trials.

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5. Review of Summary Trials
1. Overview
   400. Presiding officers are trained, and expected, to provide reasons for their findings and for the punishments imposed by them at summary trials. However, there is no requirement that such reasons be made in writing.^{Footnote 448} The only requirement on presiding officers is to “complete Part 6 of the Record of Disciplinary Proceedings”,^{Footnote 449} which I reproduce below:^{Footnote 450}
   
   Text version

   Part 6 - Summary trial (QR&O – ORFC article 108.20)

   • Summary trial conducted by a:
     • Delegated officer
     • Commanding officer
     • Superior commander
   • Findings:
     • Not guilty of charges nos.:
     • Guilty of related less serious or attempted offences on charges nos.:
     • Guilty of charges nos.:
     • Proceedings stayed in respect of alternate charges nos.:
     • Absolute discharge
     • Sentence:
   • Officer presiding at the summary trial
     • Name
     • Rank
     • Position
     • Signature
     • Date
   401. The outcomes of summary trials can currently be reviewed in four separate ways.
   402. First, “an officer or non-commissioned member found guilty of a service offence at a summary trial may request a review authority to […] set aside the finding of guilty on the ground that it is unjust; and […] alter the sentence on the ground that it is unjust or too severe”.^{Footnote 451} All review authorities are members of the chain of command.^{Footnote 452} Requests for review must be made “within 14 days of the termination of the summary trial”.^{Footnote 453} Presiding officers can provide their “comments concerning the request to the review authority”,^{Footnote 454} and the members requesting the review can make representations about the presiding officers’ comments.^{Footnote 455}
   403. Second, the OJAG conducts, of its own initiative, a monthly review of all records of disciplinary proceedings, including the outcomes of requests for review, placed^{Footnote 456} on unit registries in the preceding month. As a result of the review, a legal officer may “advise the commanding officer and any other appropriate service authority concerning any errors on the face of the record or non-compliance with procedural requirements”.^{Footnote 457}
   404. Third, “[w]hile [the two foregoing] processes are designed to deal with most review cases”, other review authorities within the chain of command “may also act on their own initiative in individual cases”.^{Footnote 458} These review authorities include the Chief of the Defence Staff, officers commanding a command, officers commanding a formation and commanding officers.^{Footnote 459}
   405. Finally, members of the CAF may, at their own cost, seek judicial review of the outcomes of a summary trial by filing an application with the Federal Court. Judicial review is not equivalent to an appeal.^{Footnote 460} It is a discretionary remedy which the courts grant only sparsely, particularly in highly specialized areas of the law.
2. Recording of Summary Trials
406. I believe that the failure to require presiding officers’ reasons to be made in writing precludes an effective review in many circumstances. I understand that presiding officers may provide their comments to a review authority when a CAF member requests the review of a summary trial, but this is not a satisfactory solution. On the contrary, it creates a risk that presiding officers will inappropriately “bootstrap” their original decision and bolster their reasons once notified of a request for review.^{Footnote 461}
407. Presiding officers should be required to provide written reasons for their findings of guilt and for the punishments imposed at summary trials. Moreover, to enable review authorities to understand what transpired during summary trials (in the interest of both the accused and the presiding officers), presiding officers should also be required to videotape or, at a minimum, to record the audio of summary trials. Recordings could be transcribed whenever a transcript is necessary for the purpose of a review. For obvious reasons, this recommendation applies equally to summary hearings.
     • Recommendation #48. Presiding officers should be required to provide written reasons for their findings that a member of the Canadian Armed Forces has committed a service offence and for the punishments imposed at summary trials.
     • Presiding officers should, as a general rule, be required to videotape or, at a minimum, to record the audio of summary trials. The recordings should be accessible to members of the Canadian Armed Forces who may request the review of summary trial proceedings and need to rely on the recordings or have them transcribed for this purpose.
3. Right to Appeal from a Summary Trial
408. I believe the review options currently available to CAF members fail to adequately protect their rights. Beyond the limited circumstances in which judicial review may be granted, CAF members who have been tried by summary trials have no access to a reviewer who is impartial and independent from the chain of command.
409. Justice should be made more accessible to them. They should be entitled to have the outcomes of summary trials reviewed on appeal by independent and impartial military judges,^{Footnote 462} with free legal representation by military defence counsel. The benefits of a right to appeal would, for the reasons mentioned in Part I of this Chapter, be increased by the establishment of a permanent Military Court of Canada staffed by civilian judges with a sufficient degree of military experience.^{Footnote 463} Both recommendations, nevertheless, are separate and failing to implement one should not necessarily mean a rejection of the other.
410. A right to appeal would address the concerns that have been discussed about presiding officers’ independence, impartiality and competence by guaranteeing the existence of a remedy against violations of due process or significant errors. Appeals would have collateral benefits as well. They would increase the caseload of military judges, prosecutors and defence counsel, thus facilitating the development of their expertise. They would also lead to a greater consistency between the findings and punishments imposed between different summary trials, and between summary trials and courts martial.
411. The United Kingdom and New Zealand have successfully instituted appeals from summary trials. In both countries, service personnel have an unfettered right of appeal to a permanent Summary Appeal Court. They are entitled to legal representation and to the benefit of legal aid in appeals. In the Summary Appeal Court of the United Kingdom, appeals are heard de novo by panels composed of a civilian judge advocate (a judge of the Court Martial) and two lay service members. In the Summary Appeal Court of New Zealand, in contrast, military judges sit alone and apply standards of appellate review.^{Footnote 464}
412. An appeal system can be implemented in Canada without defeating the purpose of the summary trial system to “provide prompt but fair justice in respect of minor service offences”.^{Footnote 465} A requirement to obtain leave to appeal from a military judge will ensure that appellate review is limited to the appropriate cases. There is no reason to believe that the creation of a right to appeal will result in a disruptively high number of appeals.^{Footnote 466}
413. To streamline the appellate process, appeals should generally be made on the record constituted at trial, with the usual standards of appellate review.^{Footnote 467} The recordings of summary trials should be used or transcribed as appropriate. The military judge granting leave to appeal should nevertheless be entitled to order that an appeal be heard and determined by way of trial de novo. This possibility exists in the civilian justice system for appeals in respect of summary convictions. Subsection 822(4) of the Criminal Code^{Footnote 468}provides that the appeal court may, on application, order an appeal by way of trial de novo if “because of the condition of the record of the trial in the summary conviction court or for any other reason”, it “is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo”.
414. To prevent an appeal from being launched simply to delay punishment, the sentence imposed at a summary trial should be enforced notwithstanding the appeal, unless a military judge suspends it on the application of the appellant.
415. Finally, communications and information technology should be used to assemble the appeal record and to allow appeals to be argued without requiring military prosecutors, defence counsel and judges to travel across Canada or abroad.
416. There are many questions regarding the creation of a right to appeal from summary trials, such as the timelines and procedural requirements for appeals, the precise roles of military prosecutors and defence counsel, the powers of military judges and the possibility of further appeals to the Court Martial Appeal Court of Canada. These questions should be considered by the same working group established to identify the most effective framework for the creation of a permanent Military Court of Canada.
     • Recommendation #49. Members of the Canadian Armed Forces tried by summary trials and convicted of a service offence should be entitled to appeal their conviction and/or any punishment imposed to a military judge, with leave.
     • The punishments imposed at summary trial should be enforced notwithstanding the appeal, unless suspended by a military judge on the application of the appellant.
     • The appellant should be offered legal counsel from the Directorate of Defence Counsel Services for the purposes of (a) the applications for leave and suspension of the punishments imposed at summary trial; and (b) the appeal, if leave is granted.
     • The working group established to identify the most effective framework for the creation of a permanent Military Court of Canada or a similarly constituted working group should identify the most effective framework for the creation of appeals from summary trials. The working group should report to the Minister of National Defence.
417. Once the summary hearing system is implemented, these recommendations will continue to be justified, for the above reasons. Independence, impartiality, due process and consistency of sentencing are not important only in the context of criminal law: they are important in any disciplinary context. The outcomes of both courts martial and summary hearings must be proportionate to the objectives of both systems. This is particularly true given that it will be possible for the same facts to result in both service infractions and service offences, with several punishments being available both at courts martial and at summary hearings.
     

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6. Reliance on Administrative Remedial Measures
   418. I believe it is important to comment in closing on commanding officers’ potential reliance on administrative remedial measures as substitutes for disciplinary proceedings. Chief Justice Lamer made the following comment, which Chief Justice LeSage reiterated in its entirety:
        • I do have concerns that one result of the perception that summary trials and courts martial take significant periods of time is the temptation for commanding officers to turn to administrative sanctions as a quick means to restore discipline. Administrative measures should not be seen as substitutes for disciplinary action. The use of long-term administrative measures, such as recorded warnings and counselling and probation, in such a manner is particularly worrying as they remain permanently on the member’s file.^{Footnote 469}
   419. There is no doubt that administrative remedial measures are poor substitutes for disciplinary action. In addition to the reasons of the previous independent review authorities, which I endorse, administrative measures are also protected by privacy requirements. Therefore, they simply cannot achieve the same deterrent effects as publicly-held summary trials or courts martial. Nor can they be expected to contribute to the restoration of unit discipline to the same extent.
   420. Several participants in my review, including members of the CAF of all ranks, mentioned that some commanding officers continue to rely on administrative remedial measures as disciplinary tools. Some participants alluded as well to the occasional use of informal, non-judicial means of discipline such as the assignment of extra duties to alleged offenders.
   421. I understand that aberrations of this sort are caused by the relevant commanding officers’ discontent with the length and perceived complexity of the summary trial process. Bill C-77 is partly meant to respond to their concerns. The OJAG told me that one of the underlying policy rationales of the summary hearing process was “[t]o address concern regarding the procedural complexity involved with the processes at summary trial and ensure that units have at their disposal an appropriate mechanism that they will use to handle disciplinary breaches at the unit level”.^{Footnote 470}
   422. In this context, I emphasize that allowing a right to appeal from summary trials is not meant to lead to the introduction of further procedural safeguards at trial, such as additional legal advice or longer or more thorough investigations. It is meant to complete the system as it currently exists by ensuring that the members of the CAF have an adequate remedy where the existing processes fail to result in acceptable outcomes.
   423. I have attempted to design the recommended appeals to minimize their interference with the maintenance of discipline at the unit level. And I hope that appeals will not dissuade commanding officers from exercising their summary trial powers (or future summary hearing powers).

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