Guideline for Initiating Judicial Pre-Trial Custody Hearing
16 September 2014
References: A. NDA section 159
B. QR&O sections 105.25 and 105.26
1. This guideline is issued to complement references A and B in establishing the steps to follow when the Custody Review Officer (CRO) causes a person in custody to be taken before a military judge.
2. Pre-trial Custody Review Hearings are an important element of the Canadian military justice system. In fact, a pre-trial custody entails that a person is deprived of his or her freedom while being presumed innocent. As such, the Office of the Chief Military Judge deals with the requests as expeditiously as possible. The aim is to hold a hearing within 24-48 hours of the request signed by the CRO and received at the Office of the Chief Military Judge, or as soon thereafter the person in custody is ready to proceed.
3. A judicial review of pre-trial custody is initiated when the CRO has decided not to release the person in custody. The CRO “shall, as soon as practicable, cause the person to be taken before a military judge”. The CRO does so by filling out the Request for Pre-trial Custody Hearing (Annex), and sending it during or after hours, to the Court Martial Administrator (CMA) by email, non-encrypted. It is essential that all of the information be included in the Request in order to avoid any unnecessary delays. Any other information or documents related to this process, (i.e. documents listed in NDA sections 158 and 158.1) are to be provided to the representative of the CAF and to the person in custody or his/her counsel.
4. Unit authorities find it useful, and are encouraged to, seek assistance from their assigned legal advisor to prepare the Request and to be ready to provide the administrative support required to hold the hearing. Responsibility for providing support such as a suitable hearing room, offices and court staff for a Pre-trial Custody Review Hearing that occurs at a unit, as with a court martial, is the responsibility of the unit Commanding Officer. The CMA can provide guidance and assistance with these matters.
5. On receipt of the CRO’s request, the CMA will request counsel to advise of their availability to proceed with the hearing. Once this information is received, the CMA will seek from the Chief Military Judge the assignment of a military judge for the hearing. Following judicial assignment, the assigned court reporter will arrange for a conference call between the military judge, the representative of the CAF and the counsel of the person in custody to deal with procedural matters.
6. If the military judge assigned to preside the hearing directs that a videoconference process be initiated, the assigned court reporter will take the necessary steps to establish a videoconference between the military judge, the person in custody, his or her counsel and the representative of the CAF. The latter will forward as soon as possible to assigned court reporter, by email, the documentary evidence intended to be introduced at the hearing only in the case where he or she is not physically present at the location of the hearing. Such evidence will then be under the custody and control of the assigned court reporter, to hand over to the military judge when the representative of the CAF introduces them as exhibits at the hearing.
7. If at any time the Pre-trial Custody Review Hearing is no longer required as the person in custody has been released before the hearing, both unit authorities and the representative of the CAF are to advise the CMA of this fact as soon as possible and follow up with a written confirmation that the person in custody has been released from custody. The CMA will then advise the military judge assigned to preside the hearing, the Chief Military Judge and the Court Reporter and cancel all administrative arrangements.
M.S. Morrissey, OMM, CD
Court Martial Administrator
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