An Act respecting national defenceNational Defence ActNational Defence201303
05
N-5SHORT TITLEShort titleThis Act may be cited as the National Defence Act.
R.S., c. N-4, s. 1.
INTERPRETATIONDefinitionsIn this Act,aircraftaéronefaircraft means flying machines and guided missiles that derive their lift in flight chiefly from aerodynamic forces, and flying devices that are supported chiefly by their buoyancy in air, and includes any aeroplane, balloon, kite balloon, airship, glider or kite;aircraft materialmatériel aéronautiqueaircraft material means engines, fittings, armament, ammunition, bombs, missiles, gear, instruments and apparatus, used or intended for use in connection with aircraft or the operation thereof, and components and accessories of aircraft and substances used to provide motive power or lubrication for or in connection with aircraft or the operation thereof;civil courttribunal civilcivil court means a court of ordinary criminal jurisdiction in Canada and includes a court of summary jurisdiction;civil custodygarde civilecivil custody means the holding under arrest or in confinement of a person by the police or other competent civil authority, and includes confinement in a penitentiary or civil prison;civil prisonprison civilecivil prison means any prison, jail or other place in Canada in which offenders sentenced by a civil court in Canada to imprisonment for less than two years can be confined, and, if sentenced outside Canada, any prison, jail or other place in which a person, sentenced to that term of imprisonment by a civil court having jurisdiction in the place where the sentence was passed, can for the time being be confined;Code of Service Disciplinecode de discipline militaireCode of Service Discipline means the provisions of Part III;court martialcour martialecourt martial includes a General Court Martial and a Standing Court Martial; Court Martial Appeal CourtCour d’appel de la cour martialeCourt Martial Appeal Court means the Court Martial Appeal Court of Canada established by section 234;criminal organizationorganisation criminellecriminal organization has the same meaning as in subsection 467.1(1) of the Criminal Code;criminal organization offenceinfraction d’organisation criminellecriminal organization offence meansan offence under section 467.11, 467.12 or 467.13 of the Criminal Code, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, ora conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);defence establishmentétablissement de défensedefence establishment means any area or structure under the control of the Minister, and the materiel and other things situated in or on any such area or structure;DepartmentministèreDepartment means the Department of National Defence;Deputy Ministersous-ministreDeputy Minister means the Deputy Minister of National Defence;detention barrackcaserne disciplinairedetention barrack means a place designated as such under subsection 205(1);emergencyétat d’urgenceemergency means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended;enemyennemienemy includes armed mutineers, armed rebels, armed rioters and pirates;enrolVersion anglaise seulementenrol means to cause any person to become a member of the Canadian Forces;finding of not responsible on account of mental disorderverdict de non-responsabilité pour cause de troubles mentauxfinding of not responsible on account of mental disorder means a finding made under subsection 202.14(1);Grievance BoardComité des griefsGrievance Board means the Canadian Forces Grievance Board established by subsection 29.16(1);Her Majesty’s Canadian Shipnavire canadien de Sa MajestéHer Majesty’s Canadian Ship means any vessel of the Canadian Forces commissioned as a vessel of war;Her Majesty’s Forcesforces de Sa MajestéHer Majesty’s Forces means the armed forces of Her Majesty wherever raised, and includes the Canadian Forces;man[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 42]materielmatérielsmateriel means all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under this Act, and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided;mental disordertroubles mentauxmental disorder means a disease of the mind;militarymilitairemilitary shall be construed as relating to all or any part of the Canadian Forces;military judgejuge militairemilitary judge means a military judge appointed under subsection 165.21(1);MinisterministreMinister means the Minister of National Defence;mutinymutineriemutiny means collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith;non-commissioned membermilitaire du rangnon-commissioned member means any person, other than an officer, who is enrolled in, or who pursuant to law is attached or seconded otherwise than as an officer to, the Canadian Forces;non-public propertybiens non publicsnon-public property meansall money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,all money and property contributed to or by officers, non-commissioned members, units or other elements of the Canadian Forces for the collective benefit and welfare of those officers, non-commissioned members, units or other elements,by-products and refuse and the proceeds of the sale thereof to the extent prescribed under subsection 39(2), andall money and property derived from, purchased out of the proceeds of the sale of, or received in exchange for, money and property described in paragraphs (a) to (c);officerofficierofficer meansa person who holds Her Majesty’s commission in the Canadian Forces,a person who holds the rank of officer cadet in the Canadian Forces, andany person who pursuant to law is attached or seconded as an officer to the Canadian Forces;penitentiarypénitencierpenitentiarymeans a penitentiary established under Part I of the Corrections and Conditional Release Act,includes, in respect of any punishment of imprisonment for life or for two years or more imposed outside Canada pursuant to the Code of Service Discipline, any prison or place in which a person sentenced to imprisonment for life or for two years or more by a civil court having jurisdiction in the place where the sentence is imposed can for the time being be confined, andmeans, in any place outside Canada where there is no prison or place for the confinement of persons sentenced to imprisonment for life or for two years or more, a civil prison;personal equipmentéquipement personnelpersonal equipment means all materiel issued to an officer or non-commissioned member for the personal wear or other personal use of that officer or non-commissioned member;possession[Repealed, 1995, c. 39, s. 175]Provost MarshalprévôtProvost Marshal means the Canadian Forces Provost Marshal;public propertybiens publicspublic property means all money and property of Her Majesty in right of Canada;regular forceforce régulièreregular force means the component of the Canadian Forces that is referred to in subsection 15(1);releaselibérationrelease means the termination of the service of an officer or non-commissioned member in any manner;reserve forceforce de réservereserve force means the component of the Canadian Forces that is referred to in subsection 15(3);scale of punishmentséchelle des peinesscale of punishments means the scale of punishments as set out in subsection 139(1);serious offenceinfraction graveserious offence means an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code;service convictcondamné militaireservice convict means a person who is under a sentence that includes a punishment of imprisonment for life or for two years or more imposed on that person pursuant to the Code of Service Discipline;service custodygarde militaireservice custody means the holding under arrest or in confinement of a person by the Canadian Forces, and includes confinement in a service prison or detention barrack;service detaineedétenu militaireservice detainee means a person who is under a sentence that includes a punishment of detention imposed on that person pursuant to the Code of Service Discipline;service offenceinfraction d’ordre militaireservice offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline;service prisonprison militaireservice prison means a place designated as such under subsection 205(1);service prisonerprisonnier militaireservice prisoner means a person who is under a sentence that includes a punishment of imprisonment for less than two years imposed on that person pursuant to the Code of Service Discipline;service tribunaltribunal militaireservice tribunal means a court martial or a person presiding at a summary trial;special forceforce spécialespecial force means such component of the Canadian Forces as may be established pursuant to subsection 16(1);summary trialprocès sommairesummary trial means a trial conducted by or under the authority of a commanding officer pursuant to section 163 and a trial by a superior commander pursuant to section 164;superior officersupérieursuperior officer means any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member;terrorism offenceinfraction de terrorismeterrorism offence meansan offence under any of sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code,an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, that is committed for the benefit of, at the direction of or in association with a terrorist group,an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes a terrorist activity, ora conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c);terrorist activityactivité terroristeterrorist activity has the same meaning as in subsection 83.01(1) of the Criminal Code;terrorist groupgroupe terroristeterrorist group has the same meaning as in subsection 83.01(1) of the Criminal Code;unfit to stand trialinaptitude à subir son procèsunfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct counsel to do so, and in particular, unable on account of mental disorder tounderstand the nature or object of the proceedings,understand the possible consequences of the proceedings, orcommunicate with counsel;unitunitéunit means an individual body of the Canadian Forces that is organized as such pursuant to section 17, with the personnel and materiel thereof.Meaning of possessionFor the purposes of the Code of Service Discipline and Part VII,a person has anything in possession when the person has it in the person’s personal possession or knowinglyhas it in the actual possession or custody of another person, orhas it in any place, whether or not that place belongs to or is occupied by the person, for the use or benefit of the person or of another person; andwhere one of two or more persons, with the knowledge and consent of the rest, has anything in the person’s custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
R.S., 1985, c. N-5, s. 2;
R.S., 1985, c. 31 (1st Supp.), ss. 42, 60;
1991, c. 43, s. 11;
1992, c. 20, s. 216;
1993, c. 34, s. 91(F);
1995, c. 39, s. 175;
1998, c. 35, s. 1;
2001, c. 32, s. 67, c. 41, s. 97;
2004, c. 15, s. 74;
2007, c. 5, s. 1;
2008, c. 29, s. 1.
Previous VersionDEPARTMENT OF NATIONAL DEFENCEEstablishment of the DepartmentFormation of departmentThere is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.
R.S., c. N-4, s. 3.
MinisterDutiesThe Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible forthe construction and maintenance of all defence establishments and works for the defence of Canada; andresearch relating to the defence of Canada and to the development of and improvements in materiel.
R.S., 1985, c. N-5, s. 4;
R.S., 1985, c. 6 (4th Supp.), s. 10.
Designation of person to execute Minister’s functionsThe Governor in Council, on the recommendation of the Minister, may designate any other person in addition to the Minister to exercise any power or perform any duty or function that is vested in or that may be exercised or performed by the Minister under this Act.
R.S., c. N-4, s. 5.
Associate MinisterThe Governor General may, by commission under the Great Seal, appoint an Associate Minister of National Defence to hold office during pleasure and to exercise and perform such powers, duties and functions of the Minister as may be assigned to the Associate Minister by the Governor in Council.
R.S., c. N-4, s. 6.
Deputy MinisterAppointmentThere shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure.
R.S., c. N-4, s. 7.
Associate Deputy MinistersThe Governor in Council may appoint not more than three Associate Deputy Ministers of National Defence, each of whom shall have the rank and status of a deputy head of a department and as such shall, under the Minister and the Deputy Minister, exercise and perform such powers, duties and functions as deputy of the Minister and otherwise as the Minister may specify.
R.S., c. N-4, s. 8.
Judge Advocate GeneralAppointmentThe Governor in Council may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces.Tenure of officeThe Judge Advocate General holds office during pleasure for a term not exceeding four years.Re-appointmentThe Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.
R.S., 1985, c. N-5, s. 9;
1998, c. 35, s. 2.
Legal adviserThe Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.
1998, c. 35, s. 2.
Superintendence of military justiceThe Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.Regular reviewsThe Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.
1998, c. 35, s. 2.
Responsible to MinisterThe Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.Annual reportThe Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.Tabling in ParliamentThe Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
1998, c. 35, s. 2.
RankThe Judge Advocate General holds a rank that is not less than brigadier-general.
1998, c. 35, s. 2.
Authority to act for Judge Advocate GeneralThe powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.
R.S., 1985, c. N-5, s. 10;
1998, c. 35, s. 2.
Non-derogationFor greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act.
1998, c. 35, s. 2.
MaterielDelivery of materiel for sale or disposalThe Governor in Council may authorize the Minister to deliver to any department or agency of the Government of Canada, for sale or disposal to any countries or international welfare organizations and on any terms that the Governor in Council may determine, any materiel that has not been declared surplus and is not immediately required for the use of the Canadian Forces or for any other purpose under this Act.
R.S., 1985, c. N-5, s. 11;
1998, c. 35, s. 3.
RegulationsPower of Governor in Council to make regulationsThe Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.Minister’s power to make regulationsSubject to section 13 and any regulations made by the Governor in Council, the Minister may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.Treasury Board’s power to make regulationsThe Treasury Board may make regulationsprescribing the rates and conditions of issue of pay of military judges;prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; andproviding for any matter concerning the pay, allowances and reimbursement of expenses of officers and non-commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.
R.S., 1985, c. N-5, s. 12;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 4.
Limitation on Minister’s powerWhere in any section of this Act, other than section 12, there is express reference to regulations made or prescribed by the Governor in Council or the Treasury Board in respect of any matter, the Minister does not have power to make regulations pertaining to that matter.
R.S., c. N-4, s. 13.
Military Police Professional Code of ConductThe Governor in Council may make regulations, to be known as the Military Police Professional Code of Conduct, to govern the conduct of members of the military police.
1998, c. 35, s. 5.
THE CANADIAN FORCESConstitutionCanadian ForcesThe Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.
R.S., c. N-4, s. 14.
Regular forceThere shall be a component of the Canadian Forces, called the regular force, that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service.Composition of regular forceThe maximum numbers of officers and non-commissioned members in the regular force shall be as authorized by the Governor in Council, and the regular force shall include such units and other elements as are embodied therein.Reserve forceThere shall be a component of the Canadian Forces, called the reserve force, that consists of officers and non-commissioned members who are enrolled for other than continuing, full-time military service when not on active service.Composition of reserve forceThe maximum numbers of officers and non-commissioned members in the reserve force shall be as authorized by the Governor in Council, and the reserve force shall include such units and other elements as are embodied therein.
R.S., 1985, c. N-5, s. 15;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Special forceIn an emergency, or if considered desirable in consequence of any action undertaken by Canada under the United Nations Charter or the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party, the Governor in Council may establish and authorize the maintenance of a component of the Canadian Forces, called the special force, consisting ofofficers and non-commissioned members of the regular force who are placed in the special force under conditions prescribed in regulations;officers and non-commissioned members of the reserve force who, being on active service or having applied and been accepted for continuing, full-time military service, are placed in the special force under conditions prescribed in regulations; andofficers and non-commissioned members not of the regular force or the reserve force who are enrolled in the special force for continuing, full-time military service.Composition of special forceThe maximum numbers of officers and non-commissioned members in the special force shall be as authorized by the Governor in Council, and the special force shall include such units and other elements as are embodied therein.
R.S., 1985, c. N-5, s. 16;
R.S., 1985, c. 31 (1st Supp.), s. 60;
2004, c. 15, s. 75.
Previous VersionUnits and Other ElementsOrganizationThe Canadian Forces shall consist of such units and other elements as are from time to time organized by or under the authority of the Minister.ComponentsA unit or other element organized under subsection (1) shall from time to time be embodied in such component of the Canadian Forces as may be directed by or under the authority of the Minister.
R.S., c. N-4, s. 17.
Chief of the Defence StaffAppointment, rank and duties of Chief of Defence StaffThe Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.Responsibility and channels of communicationUnless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.
R.S., c. N-4, s. 18.
Vice Chief of the Defence StaffThere shall be an officer appointed by the Chief of the Defence Staff to be the Vice Chief of the Defence Staff.
1998, c. 35, s. 6.
Absence or incapacity of Chief of the Defence StaffIn the event of the absence or incapacity of the Chief of the Defence Staff, the Vice Chief of the Defence Staff, or any other officer that is specified by the Minister or the Chief of the Defence Staff, has the control and administration of the Canadian Forces.
1998, c. 35, s. 6.
Powers of CommandAuthority of officers and non-commissioned membersThe authority and powers of command of officers and non-commissioned members shall be as prescribed in regulations.
R.S., 1985, c. N-5, s. 19;
R.S., 1985, c. 31 (1st Supp.), s. 60.
EnrolmentCommissioned officersCommissions of officers in the Canadian Forces shall be granted by Her Majesty during pleasure.Officer cadets and non-commissioned membersPersons shall be enrolled as officer cadets or as non-commissioned members for indefinite or fixed periods of service as may be prescribed in regulations made by the Governor in Council.When consent of parent or guardian requiredA person under the age of eighteen years shall not be enrolled without the consent of one of the parents or of the guardian of that person.
R.S., 1985, c. N-5, s. 20;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Ranks of officers and non-commissioned membersFor the purposes of this Act, the ranks of the officers and non-commissioned members of the Canadian Forces shall be as set out in Column I of the schedule.Use of other designationsThe Governor in Council may make regulations prescribing the circumstances in which a person holding a rank set out in Column I of the schedule shall use, or be referred to by, a designation of rank set out in Column II, III or IV of the schedule opposite the rank held by that person.
R.S., 1985, c. N-5, s. 21;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Numbers in ranks and trade groupsThe maximum number of persons in each rank and trade group of the Canadian Forces shall be determined as prescribed in regulations made by the Governor in Council.
R.S., c. N-4, s. 22.
Obligation to serveThe enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.Oaths and declarations on enrolmentOaths and declarations required on enrolment shall be taken and subscribed before commissioned officers or justices of the peace and shall be in such forms as may be prescribed in regulations.
R.S., c. N-4, s. 23.
Consent to transferNo officer or non-commissioned member shall be transferred from the regular force to the reserve force or from the reserve force to the regular force unless the officer or non-commissioned member consents to the transfer.
R.S., 1985, c. N-5, s. 24;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Effect of receipt of pay if not enrolledA person who, although not enrolled or re-engaged for service, has received pay as an officer or non-commissioned member is, until the person claims to be released and is released, deemed to be an officer or non-commissioned member, as the case may be, of that component of the Canadian Forces through which the pay was received and to be subject to this Act as if the person were such an officer or non-commissioned member duly enrolled or re-engaged for service.
R.S., 1985, c. N-5, s. 25;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Effect of receipt of pay if irregularly enrolledA person who, although erroneously or irregularly enrolled or re-engaged, has received pay as an officer or non-commissioned member of that component of the Canadian Forces in which the person was so enrolled or re-engaged, is deemed to be an officer or non-commissioned member, as the case may be, regularly enrolled or re-engaged, and is not, except as provided in subsection (2), entitled to be released on the ground of the error or irregularity.Provision for releaseA person who is, by virtue of subsection (1), deemed to be an officer or non-commissioned member and who claims to be released within three months after the date of commencement of the pay and establishes the error or irregularity referred to in that subsection shall, except when on active service or during an emergency, be released.Method of releaseThe commanding officer of a person who claims to be released on the ground of not having been enrolled or re-engaged, or not having been regularly enrolled or re-engaged, shall forthwith forward the claim to the authority having power to effect the release and the person, if entitled to be released, shall be released with all convenient speed.
R.S., 1985, c. N-5, s. 26;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Attachment and SecondmentManner and conditions of attachment and secondmentAn officer or non-commissioned member may be attached or seconded to another component of the Canadian Forces or to any department or agency of government, any public or private institution, private industry or any other body in such manner and under such conditions as are prescribed in any other Act or in regulations, but no officer or non-commissioned member of the reserve force who is not on active service shall be attached or seconded pursuant to this section unless the officer or non-commissioned member consents to the attachment or secondment.
R.S., 1985, c. N-5, s. 27;
R.S., 1985, c. 31 (1st Supp.), s. 60.
PromotionAuthority to promoteSubject to section 22 and to regulations, officers and non-commissioned members may be promoted by the Minister or by such authorities of the Canadian Forces as are prescribed in regulations made by the Governor in Council.
R.S., 1985, c. N-5, s. 28;
R.S., 1985, c. 31 (1st Supp.), s. 60.
GrievancesRight to grieveAn officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.ExceptionsThere is no right to grieve in respect ofa decision of a court martial or the Court Martial Appeal Court;a decision of a board, commission, court or tribunal established other than under this Act; ora matter or case prescribed by the Governor in Council in regulations.Manner and conditionsA grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.No penalty for grievanceAn officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.Correction of errorNotwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.
R.S., 1985, c. N-5, s. 29;
R.S., 1985, c. 31 (1st Supp.), s. 43;
1998, c. 35, s. 7.
Authorities for determination of grievancesThe initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.Different authoritiesThe regulations may provide that different types of grievances may be considered and determined by different authorities.
1998, c. 35, s. 7.
Final authorityThe Chief of the Defence Staff is the final authority in the grievance process.
1998, c. 35, s. 7.
Referral to Grievance BoardThe Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.Material to be provided to BoardWhen referring a grievance to the Grievance Board, the Chief of the Defence Staff shall provide the Grievance Board with a copy ofthe written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;the decision made by each authority in respect of the grievance; andany other information under the control of the Canadian Forces that is relevant to the grievance.
1998, c. 35, s. 7.
Chief of the Defence Staff not boundThe Chief of the Defence Staff is not bound by any finding or recommendation of the Grievance Board.ReasonsIf the Chief of the Defence Staff does not act on a finding or recommendation of the Grievance Board, the Chief of the Defence Staff shall include the reasons for not having done so in the decision respecting the disposition of the grievance.
1998, c. 35, s. 7.
DelegationThe Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, exceptthe duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; andthe power to delegate under this section.
1998, c. 35, s. 7.
Decision is finalA decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
1998, c. 35, s. 7;
2002, c. 8, s. 182.
Previous VersionCanadian Forces Grievance BoardCanadian Forces Grievance Board establishedThere is established a board, called the Canadian Forces Grievance Board, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.Full- or part-timeThe Chairperson and one Vice-Chairperson are each full-time members and the other members may be appointed as full-time or part-time members.Tenure and removalEach member holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.Re-appointmentA member is eligible to be re-appointed on the expiry of a first or subsequent term of office.Duties of full-time membersFull-time members shall devote the whole of their time to the performance of their duties under this Act.Conflict of interest — part-time membersPart-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.RemunerationMembers who are not officers or non-commissioned members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.Travel and living expensesMembers who are not officers or non-commissioned members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.Status of membersMembers who are not officers or non-commissioned members are deemedto be employed in the public service for the purposes of the Public Service Superannuation Act;to be employees for the purposes of the Government Employees Compensation Act; andto be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.SecondmentAn officer or a non-commissioned member who is appointed as a member of the Grievance Board shall be seconded to the Grievance Board in accordance with section 27.Oath of officeEvery member shall, before commencing the duties of office, take the following oath of office:I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Canadian Forces Grievance Board in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Canadian Forces Grievance Board, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)
1998, c. 35, s. 7;
2003, c. 22, ss. 224(E), 225(E).
Previous VersionChairpersonThe Chairperson is the chief executive officer of the Grievance Board and has supervision over and direction of its work and staff.Absence or incapacityIn the event of the absence or incapacity of the Chairperson or if that office is vacant, the Minister may authorize a Vice-Chairperson to exercise the powers and perform the duties and functions of the Chairperson.DelegationThe Chairperson may delegate to a Vice-Chairperson any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 29.28(1).
1998, c. 35, s. 7.
Head officeThe head office of the Grievance Board shall be at the place in Canada designated by the Governor in Council.
1998, c. 35, s. 7.
StaffThe employees that are necessary for the proper conduct of the work of the Grievance Board shall be appointed in accordance with the Public Service Employment Act.ExpertsThe Grievance Board may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Grievance Board in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.
1998, c. 35, s. 7.
Duties and functionsThe Grievance Board shall review every grievance referred to it by the Chief of the Defence Staff and provide its findings and recommendations in writing to the Chief of the Defence Staff and the officer or non-commissioned member who submitted the grievance.Duty to act expeditiouslyThe Grievance Board shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
1998, c. 35, s. 7.
PowersThe Grievance Board has, in relation to the review of a grievance referred to it, the powerto summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;to administer oaths; andto receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.
1998, c. 35, s. 7.
RestrictionThe Grievance Board may not receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.
1998, c. 35, s. 7.
Witness not excused from testifyingNo witness shall be excused from answering any question relating to a grievance before the Grievance Board when required to do so by the Grievance Board on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.Answer not receivableNo answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.
1998, c. 35, s. 7.
ExpensesTravel and living expenses incurred in appearing before the Grievance Board shall, in the discretion of the Grievance Board, be paid, in accordance with applicable Treasury Board directives, to the officer or non-commissioned member whose grievance is being heard, and to that person’s assisting officer or counsel, if the Grievance Board holds a hearing at a place in Canada that is not their ordinary place of residence.
1998, c. 35, s. 7.
Return of documents, etc.Documents and things presented to the Grievance Board at a hearing shall, on request, be returned to the person who presented them within a reasonable time after the Grievance Board has provided its findings and recommendations to the Chief of the Defence Staff.
1998, c. 35, s. 7.
RulesThe Chairperson may make rules respectingthe manner of dealing with grievances referred to the Grievance Board, including the conduct of investigations and hearings by the Grievance Board;the apportionment of the work of the Grievance Board among its members and the assignment of members to review grievances; andthe performance of the duties and functions of the Grievance Board.Hearings in privateA hearing of the Grievance Board is to be held in private, unless the Chairperson, having regard to the interests of the persons participating in the hearing and the interest of the public, directs that the hearing or any part of it be held in public.
1998, c. 35, s. 7.
Protection of membersNo criminal or civil proceedings lie against any member of the Grievance Board, or against any person acting on its behalf, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Grievance Board.
1998, c. 35, s. 7.
Annual reportThe Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievance Board during that year and its recommendations, if any.Tabling in ParliamentThe Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
1998, c. 35, s. 7.
ReleaseEntitlementExcept during an emergency, an officer or non-commissioned member who is not on active service is entitled to be released at the expiration of the term of service for which the officer or non-commissioned member is enrolled or re-engaged.Effect of illegal absenceExcept as may be prescribed in regulations made by the Governor in Council, any period during which an officer or non-commissioned member is in a state of desertion or is absent without leave shall not be reckoned toward the completion of the term of service for which that officer or non-commissioned member was enrolled or re-engaged.Exception in emergency or when on active serviceWhere the term of service for which an officer or non-commissioned member is enrolled or re-engaged expires during an emergency or when the officer or non-commissioned member is on active service or within one year after the expiration of an emergency or after he has ceased to be on active service, the officer or non-commissioned member is liable to serve until the expiration of one year after the emergency has ceased to exist or after he has ceased to be on active service, as the case may be.ReinstatementSubject to regulations made by the Governor in Council, wherean officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, andthe sentence or finding ceases to have force and effect as a result of a decision of a competent authority,the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.
R.S., 1985, c. N-5, s. 30;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Active ServicePlacing forces on active serviceThe Governor in Council may place the Canadian Forces or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do soby reason of an emergency, for the defence of Canada;in consequence of any action undertaken by Canada under the United Nations Charter; orin consequence of any action undertaken by Canada under the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party.When officers and non-commissioned members deemed on active serviceAn officer or non-commissioned member whois a member of, serving with, or attached or seconded to, a component, unit or other element of the Canadian Forces that has been placed on active service,has been placed on active service, orpursuant to law has been attached or seconded to a portion of a force that has been placed on active service,shall be deemed to be on active service for all purposes.
R.S., 1985, c. N-5, s. 31;
R.S., 1985, c. 31 (1st Supp.), s. 60;
2004, c. 15, s. 76.
Previous VersionProclamation for meeting of ParliamentWhenever the Governor in Council places the Canadian Forces or any component or unit thereof on active service, if Parliament is then separated by an adjournment or prorogation that will not expire within ten days, a proclamation shall be issued for the meeting of Parliament within ten days, and Parliament shall accordingly meet and sit on the day appointed by the proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.
R.S., c. N-4, s. 32.
ServiceLiability in case of regular forceThe regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.Liability in case of reserve forceThe reserve force, all units and other elements thereof and all officers and non-commissioned members thereofmay be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; andmay be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.Exception in case of reserve forceNothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.Meaning of dutyIn this section, duty means any duty that is military in nature and includes any duty involving public service authorized under section 273.6.
R.S., 1985, c. N-5, s. 33;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 8.
Limitation on DeploymentPersons under eighteenA person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.
R.S., 1985, c. N-5, s. 34;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 9;
2000, c. 13, s. 1.
Pay and AllowancesTreasury Board to establishThe rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.Reimbursements and allowancesThe payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service shall be determined and regulated by the Treasury Board.
R.S., 1985, c. N-5, s. 35;
R.S., 1985, c. 31 (1st Supp.), s. 60(E);
1998, c. 35, s. 10.
Supply and Issue of MaterielMinisterial approvalThe materiel supplied to or used by the Canadian Forces shall be of such type, pattern and design and shall be issued on such scales and in such manner as the Minister, or such authorities of the Canadian Forces as are designated by the Minister for that purpose, may approve.
R.S., c. N-4, s. 36.
Public PropertyLiability for loss or damageThe conditions under which and the extent to which an officer or non-commissioned member is liable to Her Majesty in respect of loss of or damage to public property shall be as prescribed in regulations.
R.S., 1985, c. N-5, s. 37;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Non-public PropertyNon-public property of unitsThe non-public property of a unit or other element of the Canadian Forces shall vest in the officer from time to time in command of that unit or other element, and shall be used for the benefit of officers and non-commissioned members or for any other purpose approved by the Chief of the Defence Staff in the manner and to the extent authorized by the Chief of the Defence Staff.Non-public property of disbanded unitsThe non-public property of every disbanded unit or other disbanded element of the Canadian Forces vested in the officer in command of that unit or other element shall pass to and vest in the Chief of the Defence Staff, and may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.Non-public property of units or elements in altered circumstancesWhere, by reason of a substantial reduction in the number of officers and non-commissioned members serving in a unit or other element of the Canadian Forces or by reason of a change in the location or other conditions of service of a unit or other element, the Chief of the Defence Staff considers it desirable to do so, he may direct that the non-public property or any part thereof that is vested in the officer in command of that unit or other element shall pass to and be vested in the Chief of the Defence Staff on the terms set out in subsection (2).
R.S., 1985, c. N-5, s. 38;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Other non-public propertyNon-public property acquired by contribution but not contributed to any specific unit or other element of the Canadian Forces shall vest in the Chief of the Defence Staff and, subject to any specific directions by the contributor as to its disposal, may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.By-products and refuseBy-products and refuse derived from rations and other consumable stores issued to the Canadian Forces for use in service kitchens, and the proceeds of the sale thereof, shall, to the extent that the Governor in Council may prescribe, be non-public property.Alienation of non-public propertyExcept as authorized by the Chief of the Defence Staff, no gift, sale or other alienation or attempted alienation of non-public property is effectual to pass the property therein.
R.S., 1985, c. N-5, s. 39;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Liability for loss or damageThe conditions under which and the extent to which an officer or non-commissioned member is liable to make restitution or reimbursement in respect of loss of or damage to non-public property resulting from the negligence or misconduct of that officer or noncommissioned member shall be as prescribed by the Minister.
R.S., 1985, c. N-5, s. 40;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Ministerial directionsThe Chief of the Defence Staff shall exercise his authority under subsections 38(1) and (2) and 39(1) subject to any directions that may be given to him by the Minister for carrying the purposes and provisions of this section and sections 38 to 40 into effect.AuditNon-public property accounts shall be audited as the Minister may from time to time direct.Special provisionThe Financial Administration Act does not apply to non-public property.
R.S., c. N-4, s. 38.
Service EstatesCollection, administration and distributionThe service estates of officers and non-commissioned members who die during their service in the Canadian Forces may be collected, administered and distributed in whole or in part as prescribed in regulations made by the Governor in Council.Definition of service estateFor the purposes of this section, but subject to any exceptions prescribed in regulations made by the Governor in Council, service estate means the following parts of the estate of a deceased officer or non-commissioned member mentioned in subsection (1):service pay and allowances;all other emoluments emanating from Her Majesty that, at the date of death, are due or otherwise payable;personal equipment that the deceased person is, under regulations, permitted to retain;personal or movable property, including cash, found on the deceased person or on a defence establishment or otherwise in the care or custody of the Canadian Forces; andin the case of an officer or non-commissioned member dying outside Canada, all other personal or movable property belonging to the deceased and situated outside Canada.
R.S., 1985, c. N-5, s. 42;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 11.
Presumption of DeathAuthority to issue certificateWhere an officer or non-commissioned member disappears under circumstances that, in the opinion of the Minister or such other authorities as the Minister may designate, raise beyond reasonable doubt a presumption that the officer or non-commissioned member is dead, the Minister or any such other authority may issue a certificate declaring that the officer or non-commissioned member is deemed to be dead and stating the date on which the death is presumed to have occurred, and the officer or non-commissioned member shall thenceforth, for the purposes of this Act and the regulations and in relation to his status and service in the Canadian Forces, be deemed to have died on that date.
R.S., 1985, c. N-5, s. 43;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Personal Effects of AbsenteesVesting and disposalThe personal belongings and decorations of an officer or non-commissioned member who is absent without leave that are found in camp, quarters or otherwise in the care or custody of the Canadian Forces vest in Her Majesty and shall be disposed of in accordance with regulations made by the Governor in Council.
R.S., 1985, c. N-5, s. 44;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Boards of InquiryConvening boardsThe Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.PowersA board of inquiry has, in relation to the matter before it, powerto summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;to administer oaths;to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; andto examine any record and make any inquiry that the board considers necessary.
R.S., 1985, c. N-5, s. 45;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 13.
Witness not excused from testifyingNo witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.Answer not receivableNo answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.
1998, c. 35, s. 14.
Cadet OrganizationsFormationThe Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of persons of not less than twelve years of age who have not attained the age of nineteen years.Training, administration, provision and commandThe cadet organizations referred to in subsection (1) shall be trained for such periods, administered in such manner and provided with materiel and accommodation under such conditions, and shall be subject to the authority and command of such officers, as the Minister may direct.Not part of Canadian ForcesThe cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.
R.S., c. N-4, s. 43;
1974-75-76, c. 36, Sch. (DND) vote 1d, c. 66, s. 21.
Educational InstitutionsEstablishmentThe Governor in Council, and any other authorities that are prescribed or appointed by the Governor in Council for that purpose, may in the interests of national defence establish institutions for the training and education of officers and non-commissioned members, officers and employees of the Department, candidates for enrolment in the Canadian Forces or for employment in the Department and other persons whose attendance has been authorized by or on behalf of the Minister.Control and administrationThe institutions referred to in subsection (1) shall be governed and administered in the manner prescribed by the Minister.
R.S., 1985, c. N-5, s. 47;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 15.
Service AssociationsEstablishmentThe Governor in Council may establish associations and organizations for purposes designed to further the defence of Canada.Accommodation, materiel and facilitiesThe Minister may authorize the provision of accommodation, materiel and facilities for the training, practice and use of the associations and organizations mentioned in subsection (1) and other associations and organizations designed to further the defence of Canada, whether or not the members of such associations and organizations are officers or non-commissioned members.
R.S., 1985, c. N-5, s. 48;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Exercise of AuthorityExercise of authority of officer or non-commissioned member by anotherAny power or jurisdiction given to, and any act or thing to be done by, to or before any officer or non-commissioned member may be exercised by, or done by, to or before any other officer or non-commissioned member for the time being authorized in that behalf by regulations or according to the custom of the service.
R.S., 1985, c. N-5, s. 49;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Method of signifying ordersOrders made under this Act may be signified by an order, instruction or letter under the hand of any officer whom the authority that made those orders has authorized to issue orders on its behalf, and any order, instruction or letter purporting to be signed by any officer appearing therein to be so authorized is evidence that the officer is so authorized.
R.S., c. N-4, s. 47.
Notification of OrdersPublicationAll regulations and all orders and instructions issued to the Canadian Forces shall be held to be sufficiently notified to any person whom they may concern by their publication, in the manner prescribed in regulations made by the Governor in Council, in the unit or other element in which that person is serving.Registered mailAll regulations and all orders and instructions relating to or in any way affecting an officer or non-commissioned member of the reserve force who is not serving with a unit or other element shall, when sent to the officer or non-commissioned member by registered mail, addressed to the latest known place of abode or business of the officer or non-commissioned member, be held to be sufficiently notified.Saving provisionNotwithstanding subsections (1) and (2), all regulations and all orders and instructions referred to in those subsections shall be held to be sufficiently notified to any person whom they may concern by their publication in the Canada Gazette.
R.S., 1985, c. N-5, s. 51;
R.S., 1985, c. 31 (1st Supp.), s. 60(E).
Validity of DocumentsAuthenticity of documentsA commission, appointment, warrant, order or instruction in writing purported to be granted, made or issued under this Act is evidence of its authenticity without proof of the signature or seal affixed thereto or the authority of the person granting, making or issuing it.
R.S., c. N-4, s. 49.
Signature on commissionsThe Governor General may cause the signature of the Governor General to be affixed to a commission granted to an officer of the Canadian Forces by stamping the signature on the commission with a stamp approved by, and used for the purpose by authority of, the Governor General.Validity of signatureA signature affixed in accordance with subsection (1) is as valid and effectual as if it were in the handwriting of the Governor General, and neither its authenticity nor the authority of the person by whom it was affixed shall be called in question, except on behalf of Her Majesty.
R.S., c. N-4, s. 50.
Validity of bondsEvery bond to Her Majesty entered into by any person before a judge, a justice of the peace or an officer of the Canadian Forces, including a military judge, for the purpose of securing the payment of a sum of money or the performance of a duty or act required or authorized by this Act or by regulations is valid and may be enforced accordingly.
R.S., 1985, c. N-5, s. 54;
1998, c. 35, s. 16.
CODE OF SERVICE DISCIPLINEDisciplinary Jurisdiction of the Canadian ForcesApplication[Repealed, 1998, c. 35, s. 17]Persons subject to Code of Service DisciplineThe following persons are subject to the Code of Service Discipline:an officer or non-commissioned member of the regular force;an officer or non-commissioned member of the special force;an officer or non-commissioned member of the reserve force when the officer or non-commissioned member isundergoing drill or training, whether in uniform or not,in uniform,on duty,[Repealed, 1998, c. 35, s. 19]called out under Part VI in aid of the civil power,called out on service,placed on active service,in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,serving with any unit or other element of the regular force or the special force, orpresent, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;an alleged spy for the enemy;a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; anda person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.Continuing liabilityEvery person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).Retention of status and rankEvery person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1).
R.S., 1985, c. N-5, s. 60;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 19.
Persons accompanying Canadian ForcesFor the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the personparticipates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations;is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; oris embarked on a vessel or aircraft of that unit or other element.How persons accompanying Canadian Forces to be treatedSubject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.Certificate entitling person to treatment as officerA person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate.
R.S., 1985, c. N-5, s. 61;
R.S., 1985, c. 31 (1st Supp.), s. 60.
CommandEvery person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies.SpiesEvery person described in paragraph 60(1)(h) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time.Released persons serving sentenceEvery person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained.
R.S., c. N-4, s. 55.
Persons under special engagementSubject to subsection (2), every person mentioned in paragraph 60(1)(j) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.Agreement entitling person to treatment as officerWhere the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.Command where person under special engagementEvery person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving.
R.S., 1985, c. N-5, s. 63;
R.S., 1985, c. 31 (1st Supp.), s. 60.
[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 44]Persons under command of officer deemed their superior officerEvery person subject to the Code of Service Discipline by virtue of paragraph 60(1)(f), (g), (i) or (j) shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person.Prohibited interpretationNothing in subsection (1) shall be construed as requiring any person described therein to bear arms or to participate in any active operations against the enemy.
R.S., c. N-4, s. 55.
Plea in Bar of TrialAutrefois acquit and autrefois convictA person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the personhas been found not guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence; orhas been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.ExceptionNothing in subsection (1) affects the validity of a new trial held pursuant to section 249.11 or 249.16 or a new trial directed by a court having jurisdiction to do so.Effect of other offences admitted at previous trialA person who under section 194 has been sentenced in respect of a service offence admitted by that person may not be tried by a service tribunal or a civil court in respect of that offence.
R.S., 1985, c. N-5, s. 66;
R.S., 1985, c. 31 (1st Supp.), s. 45;
1998, c. 35, s. 20.
Place of Commission of OffenceService offence, wherever committed, is triableSubject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.
R.S., c. N-4, s. 57.
Place of TrialNo territorial limitationEvery person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.
R.S., c. N-4, s. 58.
Period of LiabilityWhen person is liableA person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.Sections 130 and 132Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.
R.S., 1985, c. N-5, s. 69;
1990, c. 14, s. 7;
1991, c. 43, s. 12;
1993, c. 34, s. 92;
1998, c. 35, s. 21;
2008, c. 29, s. 2.
Previous VersionLimitations with respect to Certain OffencesOffences not triable by service tribunalA service tribunal shall not try any person charged with any of the following offences committed in Canada:murder;manslaughter; oran offence under any of sections 280 to 283 of the Criminal Code.[Repealed, 1998, c. 35, s. 22]
R.S., 1985, c. N-5, s. 70;
1998, c. 35, s. 22.
Jurisdiction of Civil CourtsNo interference with civil jurisdictionSubject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.
R.S., 1985, c. N-5, s. 71;
R.S., 1985, c. 31 (1st Supp.), s. 46.
Service Offences and PunishmentsResponsibility for OffencesParties to offencesEvery person is a party to and guilty of an offence whoactually commits it;does or omits to do anything for the purpose of aiding any person to commit it;abets any person in committing it; orcounsels or procures any person to commit it.AttemptsEvery person who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.Common intentionWhere two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence.
R.S., c. N-4, s. 62.
Misconduct of Commanders in Presence of EnemyOffences by commanders when in actionEvery officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces whowhen under orders to carry out an operation of war or on coming into contact with an enemy that it is the duty of the officer to engage, does not use his utmost exertion to bring the officers and non-commissioned members under his command or his vessel, aircraft or other materiel into action,being in action, does not, during the action, in the officer’s own person and according to the rank of the officer, encourage his officers and non-commissioned members to fight courageously,when capable of making a successful defence, surrenders his vessel, aircraft, defence establishment, materiel, unit or other element of the Canadian Forces to the enemy,being in action, improperly withdraws from the action,improperly fails to pursue an enemy or to consolidate a position gained,improperly fails to relieve or assist a known friend to the utmost of his power, orwhen in action, improperly forsakes his station,is guilty of an offence and on conviction, if the officer acted traitorously, shall be sentenced to imprisonment for life, if the officer acted from cowardice, is liable to imprisonment for life or less punishment, and in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.
R.S., 1985, c. N-5, s. 73;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 24.
Misconduct of any Person in Presence of EnemyOffences by any person in presence of enemyEvery person whoimproperly delays or discourages any action against the enemy,goes over to the enemy,when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect,improperly abandons or delivers up any defence establishment, garrison, place, materiel, post or guard,assists the enemy with materiel,improperly casts away or abandons any materiel in the presence of the enemy,improperly does or omits to do anything that results in the capture by the enemy of persons or the capture or destruction by the enemy of materiel,when on watch in the presence or vicinity of the enemy, leaves his post before he is regularly relieved or sleeps or is drunk,behaves before the enemy in such manner as to show cowardice, ordoes or omits to do anything with intent to imperil the success of any of Her Majesty’s Forces or of any forces cooperating therewith,is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 74;
1998, c. 35, s. 25.
SecurityOffences related to securityEvery person whoimproperly holds communication with or gives intelligence to the enemy,without authority discloses in any manner whatever any information relating to the numbers, position, materiel, movements, preparations for movements, operations or preparations for operations of any of Her Majesty’s Forces or of any forces cooperating therewith,without authority discloses in any manner whatever any information relating to a cryptographic system, aid, process, procedure, publication or document of any of Her Majesty’s Forces or of any forces cooperating therewith,makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it,gives a parole, watchword, password, countersign or identification signal different from that which he received,without authority alters or interferes with any identification or other signal,improperly occasions false alarms,when acting as sentry or lookout, leaves his post before he is regularly relieved or sleeps or is drunk,forces a safeguard or forces or strikes a sentinel, ordoes or omits to do anything with intent to prejudice the security of any of Her Majesty’s Forces or of any forces cooperating therewith,is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 75;
1998, c. 35, s. 26.
Prisoners of WarOffences related to prisoners of warEvery person whoby want of due precaution, or through disobedience of orders or wilful neglect of duty, is made a prisoner of war,having been made a prisoner of war, fails to rejoin Her Majesty’s service when able to do so, orhaving been made a prisoner of war, serves with or aids the enemy,is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 76;
1998, c. 35, s. 27.
Miscellaneous Operational OffencesOffences related to operationsEvery person whodoes violence to any person bringing materiel to any of Her Majesty’s Forces or to any forces cooperating therewith,irregularly detains any materiel being conveyed to any unit or other element of Her Majesty’s Forces or of any forces cooperating therewith,irregularly appropriates to the unit or other element of the Canadian Forces with which the person is serving any materiel being conveyed to any other unit or element of Her Majesty’s Forces or of any forces cooperating therewith,without orders from the person’s superior officer, improperly destroys or damages any property,breaks into any house or other place in search of plunder,commits any offence against the property or person of any inhabitant or resident of a country in which he is serving,steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations,steals any money or property that has been left exposed or unprotected in consequence of warlike operations, ortakes otherwise than for the public service any money or property abandoned by the enemy,is guilty of an offence and on conviction, if the person committed the offence on active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.
R.S., c. N-4, s. 67.
Spies for the EnemyOffence of being spyEvery person who spies for the enemy is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 78;
1998, c. 35, s. 28.
MutinyMutiny with violenceEvery person who joins in a mutiny that is accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 79;
1998, c. 35, s. 28.
Mutiny without violenceEvery person who joins in a mutiny that is not accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding fourteen years or to less punishment or, in the case of a ringleader of the mutiny, to imprisonment for life or to less punishment.
R.S., 1985, c. N-5, s. 80;
1998, c. 35, s. 28.
Offences related to mutinyEvery person whocauses or conspires with any other person to cause a mutiny,endeavours to persuade any person to join in a mutiny,being present, does not use his utmost endeavours to suppress a mutiny, orbeing aware of an actual or intended mutiny, does not without delay inform his superior officer thereof,is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., c. N-4, s. 71.
Seditious OffencesAdvocating governmental change by forceEvery person who publishes or circulates any writing, printing or document in which is advocated, or who teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change within Canada is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., c. N-4, s. 72.
InsubordinationDisobedience of lawful commandEvery person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., c. N-4, s. 73.
Striking or offering violence to a superior officerEvery person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
R.S., c. N-4, s. 74.
Insubordinate behaviourEvery person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.
R.S., c. N-4, s. 75.
Quarrels and disturbancesEvery person whoquarrels or fights with any other person who is subject to the Code of Service Discipline, oruses provoking speeches or gestures toward a person so subject that tend to cause a quarrel or disturbance,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 76.
Resisting or escaping from arrest or custodyEvery person whobeing concerned in a quarrel, fray or disorder,refuses to obey an officer, though of inferior rank, who orders the person into arrest, orstrikes or uses or offers violence to any such officer,strikes or uses or offers violence to any other person in whose custody he is placed, whether or not that other person is his superior officer and whether or not that other person is subject to the Code of Service Discipline,resists an escort whose duty it is to apprehend him or to have him in charge, orbreaks out of barracks, station, camp, quarters or ship,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 77.
DesertionOffenceEvery person who deserts or attempts to desert is guilty of an offence and on conviction, if the person committed the offence on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.DefinitionA person deserts whobeing on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service;having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;is absent without authority from his place of duty and at any time during such absence forms the intention of remaining absent from his place of duty; orwhile absent with authority from his place of duty, with the intention of remaining absent from his place of duty, does any act or omits to do anything the natural and probable consequence of which act or omission is to preclude the person from being at his place of duty at the time required.Presumption of desertionA person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of remaining absent from his place of duty.
R.S., c. N-4, s. 78.
Connivance at desertionEvery person whobeing aware of the desertion or intended desertion of a person from any of Her Majesty’s Forces, does not without reasonable excuse inform his superior officer forthwith, orfails to take any steps in his power to cause the apprehension of a person whom he knows, or has reasonable grounds to believe, to be a deserter,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 79.
Absence without LeaveOffenceEvery person who absents himself without leave is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.DefinitionA person absents himself without leave whowithout authority leaves his place of duty;without authority is absent from his place of duty; orhaving been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized.
R.S., c. N-4, s. 80.
False statement in respect of leaveEvery person who knowingly makes a false statement in respect of prolongation of leave of absence is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 81.
Disgraceful ConductScandalous conduct by officersEvery officer who behaves in a scandalous manner unbecoming an officer is guilty of an offence and on conviction shall suffer dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service.
R.S., c. N-4, s. 82.
Cruel or disgraceful conductEvery person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.
R.S., c. N-4, s. 83.
Traitorous or disloyal utterancesEvery person who uses traitorous or disloyal words regarding Her Majesty is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.
R.S., c. N-4, s. 84.
Abuse of subordinatesEvery person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 85.
Making false accusations or statements or suppressing factsEvery person whomakes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, orwhen seeking redress under section 29, knowingly makes a false statement affecting the character of an officer or non-commissioned member or knowingly, in respect of the redress so sought, suppresses any material factis guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 96;
R.S., 1985, c. 31 (1st Supp.), s. 60.
DrunkennessDrunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.When committedFor the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,is unfit to be entrusted with any duty that the person is or may be required to perform; orbehaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.
R.S., 1985, c. N-5, s. 97;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Malingering, aggravating disease or infirmity or injuring self or anotherEvery person whomalingers or feigns or produces disease or infirmity,aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, orwilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.
R.S., c. N-4, s. 88.
Offences in relation to Service Arrest and CustodyDetaining unnecessarily or failing to bring up for investigationEvery person who unnecessarily detains any other person in arrest or confinement without bringing him to trial, or fails to bring that other person’s case before the proper authority for investigation, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 89.
Setting free without authority or allowing or assisting escapeEvery person whowithout authority sets free or authorizes or otherwise facilitates the setting free of any person in custody,negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody, orassists any person in escaping or in attempting to escape from custody,is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for a term not exceeding seven years or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 90.
Escape from custodyEvery person who, being in arrest or confinement or in prison or otherwise in lawful custody, escapes or attempts to escape is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 91.
Failure to comply with conditionsEvery person who, without lawful excuse, fails to comply with a condition imposed under Division 3, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
1998, c. 35, s. 29.
Hindering arrest or confinement or withholding assistance when called onEvery person whoresists or wilfully obstructs an officer or non-commissioned member in the performance of any duty pertaining to the arrest, custody or confinement of a person subject to the Code of Service Discipline, orwhen called on, refuses or neglects to assist an officer or non-commissioned member in the performance of any such dutyis guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 102;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Withholding delivery over or assistance to civil powerEvery person who neglects or refuses to deliver over an officer or non-commissioned member to the civil power, pursuant to a warrant in that behalf, or to assist in the lawful apprehension of an officer or non-commissioned member accused of an offence punishable by a civil court is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 103;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Offences in relation to VesselsLosing, stranding or hazarding vesselsEvery person who wilfully or negligently or through other default loses, strands or hazards, or suffers to be lost, stranded or hazarded, any of Her Majesty’s Canadian ships or other vessels of the Canadian Forces is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.
R.S., c. N-4, s. 94.
[Repealed, 1998, c. 35, s. 30]Disobedience of captain’s ordersEvery person who, when in a ship, disobeys any lawful command given by the captain of the ship in relation to the navigation or handling of the ship or affecting the safety of the ship, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.Command in shipFor the purposes of this section, every person of whatever rank shall, when the person is in a ship, be under the command, in respect of all matters relating to the navigation or handling of the ship or affecting the safety of the ship, of the captain of the ship, whether or not the captain is subject to the Code of Service Discipline.
R.S., c. N-4, s. 96.
Offences in relation to AircraftWrongful acts in relation to aircraft or aircraft materialEvery person whoin the use of or in relation to any aircraft or aircraft material, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause loss of life or bodily injury to any person,wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission results or is likely to result in damage to or destruction or loss of any of Her Majesty’s aircraft or aircraft material or of aircraft or aircraft material of any forces cooperating with Her Majesty’s Forces, orduring a state of war wilfully or negligently causes the sequestration by or under the authority of a neutral state or the destruction in a neutral state of any of Her Majesty’s aircraft or of aircraft of any forces cooperating with Her Majesty’s Forces,is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 97.
Signing inaccurate certificateEvery person who signs an inaccurate certificate in relation to an aircraft or aircraft material without taking reasonable steps to ensure that it was accurate, the proof of taking which steps lies on that person, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 98.
Low flyingEvery person who flies an aircraft at a height less than the minimum height authorized in the circumstances is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 99.
Disobedience of captain’s ordersEvery person who, when in an aircraft, disobeys any lawful command given by the captain of the aircraft in relation to the flying or handling of the aircraft or affecting the safety of the aircraft, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.Command in aircraftFor the purposes of this section,every person of whatever rank shall, when the person is in an aircraft, be under the command, in respect of all matters relating to the flying or handling of the aircraft or affecting the safety of the aircraft, of the captain of the aircraft, whether or not the captain is subject to the Code of Service Discipline; andif the aircraft is a glider and is being towed by another aircraft, the captain of the glider shall, so long as the glider is being towed, be under the command, in respect of all matters relating to the flying or handling of the glider or affecting the safety of the glider, of the captain of the towing aircraft, whether or not the captain of the towing aircraft is subject to the Code of Service Discipline.
R.S., c. N-4, s. 100.
Offences in relation to VehiclesImproper driving of vehiclesEvery person whodrives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or, having charge of and being in or on such a vehicle, causes or by wilful neglect permits it to be so driven,while the person’s ability to drive a vehicle of the Canadian Forces is impaired by alcohol or a drug, drives or attempts to drive such a vehicle, whether it is in motion or not, orhaving charge of a vehicle of the Canadian Forces, knowingly permits it to be driven by a person whose ability to drive such a vehicle is impaired by alcohol or a drug,is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.Occupant of driver’s seat deemed attempting to driveFor the purposes of paragraph (1)(b), a person who occupies the seat ordinarily occupied by a driver of a vehicle shall be deemed to have attempted to drive the vehicle, unless that person establishes that he did not enter or mount the vehicle for the purpose of setting it in motion.
R.S., c. N-4, s. 101.
Improper use of vehiclesEvery person whouses a vehicle of the Canadian Forces for an unauthorized purpose,without authority uses a vehicle of the Canadian Forces for any purpose, oruses a vehicle of the Canadian Forces contrary to any regulation, order or instruction,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 102.
Offences in relation to PropertyCausing firesEvery person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 103.
StealingEvery person who steals is guilty of an offence and on conviction, if by reason of the person’s rank, appointment or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding seven years or to less punishment.DefinitionFor the purposes of this section,stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, any thing capable of being stolen, with intentto deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of that property or interest,to pledge it or deposit it as security,to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, orto deal with it in such a manner that it cannot be restored in the condition in which it was at the time when it was taken and converted;stealing is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it;the taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment; andit is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person who converts it.When movable inanimate things capable of being stolenEvery inanimate thing that is the property of any person and that either is or may be made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order that it may be stolen.
R.S., c. N-4, s. 104.
ReceivingEvery person who receives or retains in his possession any property obtained by the commission of any service offence, knowing the property to have been so obtained, is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.
R.S., c. N-4, s. 105.
Destruction, damage, loss or improper disposalEvery person whowilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any public property, non-public property or property of any of Her Majesty’s Forces or of any forces cooperating therewith,wilfully destroys, damages or improperly sells any property belonging to another person who is subject to the Code of Service Discipline, orsells, pawns or otherwise disposes of any cross, medal, insignia or other decoration granted by or with the approval of Her Majesty,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 106.
Miscellaneous offencesEvery person whoconnives at the exaction of an exorbitant price for property purchased or rented by a person supplying property or services to the Canadian Forces,improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department or the Canadian Forces,receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration, either in money or otherwise, from any person, for assisting or favouring any person in the transaction of any business relating to any of Her Majesty’s Forces, or to any forces cooperating therewith or to any mess, institute or canteen operated for the use and benefit of members of those forces,demands or accepts compensation, consideration or personal advantage for convoying a vessel entrusted to his care,being in command of a vessel or aircraft, takes or receives on board goods or merchandise that he is not authorized to take or receive on board, orcommits any act of a fraudulent nature not particularly specified in sections 73 to 128,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 117;
1998, c. 35, s. 31.
Offences in relation to TribunalsDefinition of tribunalFor the purposes of this section and section 119, tribunal includes, in addition to the tribunals referred to in the definition service tribunal in section 2, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military Police Complaints Commission, a board of inquiry and a commissioner taking evidence under this Act.ContemptEvery person whobeing duly summoned or ordered to attend as a witness before a tribunal, fails to attend or to remain in attendance,refuses to take an oath or make a solemn affirmation lawfully required by a tribunal to be taken or made,refuses to produce any document in the power or control of, and lawfully required by a tribunal to be produced by, that person,refuses when a witness to answer any question to which a tribunal may lawfully require an answer,uses insulting or threatening language before, or causes any interruption or disturbance in the proceedings of, a tribunal, orcommits any other contempt of a tribunalis guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 118;
1998, c. 35, s. 32.
Failure to appear or attendEvery person who, being duly summoned or ordered to appear as an accused before a service tribunal, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
1998, c. 35, s. 32.
False evidenceEvery person who, when examined on oath or solemn affirmation before a tribunal, knowingly gives false evidence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.
R.S., 1985, c. N-5, s. 119;
1998, c. 35, s. 32.
Offence in Relation to the Sex Offender Information Registration ActFailure to comply with order or obligationEvery person who, without reasonable excuse, fails to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.Reasonable excuseFor greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.Proof of certain facts by certificateIn proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.Attendance and cross-examinationThe person named in the certificate may, with the leave of the court martial, require the attendance of the person who signed it for the purpose of cross-examination.Notice of intention to produceA certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the person named in the certificate a copy of it and reasonable notice of their intention to produce it.
2007, c. 5, s. 2;
2010, c. 17, s. 45.
Previous VersionOffence in Relation to DNA IdentificationFailure to comply with order or summonsEvery person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.For greater certaintyFor greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.
2007, c. 22, ss. 34, 49.
Offences in relation to BilletingIll-treatment or non-payment of occupant or person on whom billetedEvery person whoill-treats, by violence, extortion or making disturbance in billets or otherwise, any occupant of a house in which any person is billeted or of any premises in which accommodation for materiel has been provided, orfails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or non-commissioned member under his command is or has been billeted or the occupant of premises on which materiel is or has been accommodated,is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 120;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Offences in relation to EnrolmentFraudulent enrolmentEvery person who, having been released from Her Majesty’s Forces by reason of a sentence of a service tribunal or by reason of misconduct, has afterwards been enrolled in the Canadian Forces without declaring the circumstances of that release is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 111.
False answers or false informationEvery person who knowinglymakes a false answer to any question set out in any document required to be completed, orfurnishes any false information or false document,in relation to the enrolment of that person is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 112.
Assisting unlawful enrolmentEvery person who is concerned in the enrolment of any other person and who knows or has reasonable grounds to believe that by being enrolled that other person commits an offence under this Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 113.
Miscellaneous OffencesNegligent performance of dutiesEvery person who negligently performs a military duty imposed on that person is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.
R.S., c. N-4, s. 114.
Offences in relation to documentsEvery person whowilfully or negligently makes a false statement or entry in a document made or signed by that person and required for official purposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof,when signing a document required for official purposes, leaves in blank any material part for which the signature is a voucher, orwith intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any military or departmental purpose,is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding three years or to less punishment.
R.S., c. N-4, s. 115.
Refusing immunization, tests, blood examination or treatmentEvery person who, on receiving an order to submit to inoculation, re-inoculation, vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, wilfully and without reasonable excuse disobeys that order is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 116.
Injurious or destructive handling of dangerous substancesEvery person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions does any act or omits to do anything, in relation to any thing or substance that may be dangerous to life or property, which act or omission causes or is likely to cause loss of life or bodily injury to any person or damage to or destruction of any property, is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 117.
ConspiracyEvery person who conspires with any other person, whether or not that other person is subject to the Code of Service Discipline, to commit an offence under the Code of Service Discipline is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.
R.S., c. N-4, s. 118.
Conduct to the Prejudice of Good Order and DisciplinePrejudicing good order or disciplineAny act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.Offence and contraventions prejudicial to good order and disciplineAn act or omission constituting an offence under section 72 or a contravention by any person ofany of the provisions of this Act,any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, orany general, garrison, unit, station, standing, local or other orders,is an act, conduct, disorder or neglect to the prejudice of good order and discipline.Attempts to commit offencesAn attempt to commit any of the offences prescribed in sections 73 to 128 is an act, conduct, disorder or neglect to the prejudice of good order and discipline.Saving provisionNothing in subsection (2) or (3) affects the generality of subsection (1).Not intended to cover offences elsewhere provided forNo person may be charged under this section with any offence for which special provision is made in sections 73 to 128 but the conviction of a person so charged is not invalid by reason only of the charge being in contravention of this subsection unless it appears that an injustice has been done to the person charged by reason of the contravention.Officer’s responsibility not affectedThe responsibility of any officer for the contravention of subsection (5) is not affected by the validity of any conviction on the charge in contravention of that subsection.
R.S., c. N-4, s. 119.
Offences Punishable by Ordinary LawService trial of civil offencesAn act or omissionthat takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, orthat takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).PunishmentSubject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,if the conviction was in respect of an offencecommitted in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, orcommitted outside Canada under section 235 of the Criminal Code,impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; orin any other case,impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, orimpose dismissal with disgrace from Her Majesty’s service or less punishment.Code of Service Discipline appliesAll provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).Saving provisionNothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.
R.S., 1985, c. N-5, s. 130;
1998, c. 35, ss. 33, 92.
Reference to Attorney GeneralFor the purposes of this Act, a reference in the definition analyst or qualified technician in subsection 254(1) of the Criminal Code to the “Attorney General” includes the Attorney General of Canada.
R.S., 1985, c. N-5, s. 131;
R.S., 1985, c. 27 (1st Supp.), s. 187.
Offences under law applicable outside CanadaAn act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Division, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).Punishment for offence under law applicable outside CanadaSubject to subsection (3), where a service tribunal finds a person guilty of an offence under subsection (1), the service tribunal shall impose the punishment in the scale of punishments that it considers appropriate, having regard to the punishment prescribed by the law applicable in the place where the act or omission occurred and the punishment prescribed for the same or a similar offence in this Act, the Criminal Code or any other Act of Parliament.Application of Code of Service DisciplineAll provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under subsection (2).Saving provisionNothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 130 and to impose the punishment for that offence described in the section prescribing that offence.Contravention of customs lawsWhere an act or omission constituting an offence under subsection (1) contravenes the customs laws applicable in the place where the offence was committed, any officer appointed under the regulations for the purposes of this section may seize and detain any goods by means of or in relation to which the officer believes on reasonable grounds that the offence was committed and, if any person is convicted of the offence under subsection (1), the goods may, in accordance with regulations made by the Governor in Council, be forfeited to Her Majesty and may be disposed of as provided by those regulations.
R.S., 1985, c. N-5, s. 132;
1998, c. 35, ss. 34, 92.
Conviction of Cognate OffencePerson charged with desertionA person charged with desertion may be found guilty of attempting to desert or of being absent without leave.Person charged with attempt to desertA person charged with attempting to desert may be found guilty of being absent without leave.
R.S., c. N-4, s. 122.
Person charged with violent offence against officerA person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.Person charged with insubordinate behaviourA person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.
R.S., c. N-4, s. 122.
Conviction of offence in circumstances involving lower punishmentA person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.
R.S., c. N-4, s. 122.
Powers on service trial of civil offencesWhere a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.
R.S., c. N-4, s. 122.
Offence charged, attempt provedWhere the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of the attempt.Attempt charged, full offence provedWhere, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be convicted of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.Conviction a barAn accused person who is convicted under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he was charged with attempting to commit.
R.S., 1985, c. N-5, s. 137;
1992, c. 16, s. 1.
Where tribunal may make special finding of guiltyWhere a service tribunal concludes thatthe facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, andthe difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars.
R.S., c. N-4, s. 124.
PunishmentsScale of punishmentsThe following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:imprisonment for life;imprisonment for two years or more;dismissal with disgrace from Her Majesty’s service;imprisonment for less than two years;dismissal from Her Majesty’s service;detention;reduction in rank;forfeiture of seniority;severe reprimand;reprimand;fine; andminor punishments.Definition of less punishmentWhere a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.
R.S., 1985, c. N-5, s. 139;
1998, c. 35, s. 35.
Imprisonment for shorter termEvery person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.
R.S., 1985, c. N-5, s. 140;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 36.
Dismissal as accompanying punishmentWhere a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.Dismissal as accompanying punishmentWhere a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.
1998, c. 35, s. 36.
Reduction in rank as accompanying punishmentWhere a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may bein the case of an officer, to the lowest commissioned rank; andin the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.
1998, c. 35, s. 36.
Sentence of imprisonment for lifeWhere a court martial imposes a punishment of imprisonment for life, the sentence to be pronounced shall bein respect of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy contrary to section 73 or 74, an offence related to security contrary to section 75 or an offence in relation to prisoners of war contrary to section 76, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;in respect of a person who has been convicted of an offence of high treason or an offence of first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;in respect of a person who has been convicted of an offence of second degree murder if that person has previously been convicted of culpable homicide that is murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;in respect of a person who has been convicted of an offence of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or any greater number of years, not being more than twenty-five, that has been substituted under subsection (2); andin respect of a person who has been convicted of any other offence, that the person be sentenced to imprisonment for life with normal eligibility for parole.Provisions of Criminal Code applySections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of life imprisonment imposed under this Act, anda reference in sections 745.2 to 745.3 of the Criminal Code to a jury is deemed to be a reference to the panel of a General Court Martial; anda reference in section 745.6 of the Criminal Code to the province in which a conviction took place is deemed, in respect of a conviction that took place outside Canada, to be a reference to the province in which the offender is incarcerated when the offender makes an application under that section.
1998, c. 35, s. 36;
2011, c. 5, s. 6.
Previous VersionPower of court martial to delay paroleNotwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.ConditionThe court martial may only make an order under subsection (1) if it is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the person, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.Criminal organization offencesNotwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.Power of court martial to delay paroleNotwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.PrinciplesFor greater certainty, the paramount principles that are to guide the court martial under this section are denunciation and specific or general deterrence, with rehabilitation of the person, in all cases, being subordinate to those paramount principles.
1998, c. 35, s. 36;
2001, c. 32, s. 68(F), c. 41, s. 98.
Dismissal with disgraceWhere a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Division, impose a punishment of imprisonment for less than two years.Effective date of dismissalA punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.ConsequencesA person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.
R.S., 1985, c. N-5, s. 141;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, ss. 37, 92.
DetentionThe punishment of detention is subject to the following conditions:detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; andno officer may be sentenced to detention.Reduction in rank during detentionIf a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.
R.S., 1985, c. N-5, s. 142;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 38.
Reduction in rankThe punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.RestrictionsThe punishment of reduction in rank does notinvolve reduction to a rank lower than that to which under regulations the offender can be reduced; andin the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.
R.S., 1985, c. N-5, s. 143;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Forfeiture of seniorityWhere a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.
R.S., 1985, c. N-5, s. 144;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 39.
FineA fine must be imposed in a stated amount.Terms of paymentThe terms of payment of a fine are in the discretion of the service tribunal that imposes the fine.Variation of terms of paymentThe terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.
R.S., 1985, c. N-5, s. 145;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 39.
Minor punishmentsMinor punishments shall be such as are prescribed in regulations made by the Governor in Council.
R.S., c. N-4, s. 125.
LimitationThe authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.
R.S., c. N-4, s. 125.
Prohibition OrdersProhibition orderWhere a person is convicted by a court martial of an offencein the commission of which violence against a person was used, threatened or attempted,that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance,relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, orthat is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code,the court martial shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court martial decides that it is so desirable, the court martial shall so order.Duration of prohibition orderAn order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.Application of orderUnless the order specifies otherwise, an order made under subsection (1) against a person does not apply to prohibit the possession of any thing in the course of the person’s duties or employment as a member of the Canadian Forces.NotificationA court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the Firearms Act to be notified of the order.
1995, c. 39, s. 176;
1996, c. 19, s. 83.1;
2012, c. 1, s. 50.
Previous VersionRequirement to surrenderA court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, andevery authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.
1995, c. 39, s. 176.
ForfeitureUnless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.DisposalEvery thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.
1995, c. 39, s. 176.
Authorizations revoked or amendedEvery authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.
1995, c. 39, s. 176.
Return to ownerWhere the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, andhad no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
1995, c. 39, s. 176.
SentencesOne sentence only to be passedOnly one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.
R.S., c. N-4, s. 126.
Incarceration under more than one SentenceConcurrent punishmentWhere a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.
R.S., 1985, c. N-5, s. 149;
2011, c. 5, s. 7.
Previous Version[Repealed before coming into force, 2005, c. 22, s. 47]Previous VersionPunishment for Certain OffencesPunishment for certain offencesNotwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.Offender must be notifiedSubsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.
2001, c. 41, s. 99.
Ignorance of LawIgnorance not to constitute excuseThe fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.
R.S., c. N-4, s. 128.
Civil DefencesRules of civil courts applicableAll rules and principles from time to time followed in the civil courts that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.
R.S., 1985, c. N-5, s. 151;
R.S., 1985, c. 31 (1st Supp.), s. 47.
[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]Arrest and Pre-Trial CustodyInterpretationDefinitionsThe definitions in this section apply in this Division.custody review officerofficier réviseurcustody review officer, in respect of a person in custody, meansthe officer who is the person’s commanding officer, or an officer who is designated by that officer; orif it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer.designated offenceinfraction désignéedesignated offence meansan offence that is punishable under section 130 that islisted in section 469 of the Criminal Code,an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, oran offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);an offence under this Act where the minimum punishment is imprisonment for life;an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;an offence under this Act that is a criminal organization offence; oran offence under this Act that is a terrorism offence.
R.S., 1985, c. N-5, s. 153;
R.S., 1985, c. 31 (1st Supp.), s. 47;
1998, c. 35, s. 40;
2001, c. 41, s. 100;
2012, c. 1, s. 48(E).
Previous VersionAuthority to ArrestGeneral authorityEvery person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.Reasonably necessary forceEvery person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.
R.S., 1985, c. N-5, s. 154;
R.S., 1985, c. 31 (1st Supp.), s. 48;
1998, c. 35, s. 92.
Powers of officersAn officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest ofany non-commissioned member;any officer of equal or lower rank; andany officer of higher rank who is engaged in a quarrel, fray or disorder.Powers of non-commissioned membersA non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest ofany non-commissioned member of lower rank; andany non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.Arrest of persons other than officers or non-commissioned membersEvery person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.
R.S., 1985, c. N-5, s. 155;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Powers of military policeOfficers and non-commissioned members who are appointed as military police under regulations for the purposes of this section maydetain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; andexercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.
R.S., 1985, c. N-5, s. 156;
R.S., 1985, c. 31 (1st Supp.), ss. 49, 60;
1998, c. 35, s. 41.
Issue of warrantsSubject to subsection (2), every commanding officer, and every officer to whom the power of trying a charge summarily has been delegated under subsection 163(4), may by a warrant under his hand authorize any person to arrest any other person triable under the Code of Service Discipline whohas committed,is believed on reasonable grounds to have committed, oris charged under this Act with having committeda service offence.LimitationAn officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.Contents of warrantsIn any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.Saving provisionNothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.
R.S., 1985, c. N-5, s. 157;
R.S., 1985, c. 31 (1st Supp.), ss. 50, 60.
Action following ArrestRelease from custodyA person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, includingthe gravity of the offence alleged to have been committed;the need to establish the identity of the person under arrest;the need to secure or preserve evidence of or relating to the offence alleged to have been committed;the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; andthe necessity to ensure the safety of the person under arrest or any other person.Retention in custodyIf an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.Duty to receive into service custodyThe officer or non-commissioned member in charge of a guard or a guard-room or an officer or non-commissioned member appointed for the purposes of section 156 shall receive and keep a person under arrest who is committed to his or her custody.Account in writingThe person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.
R.S., 1985, c. N-5, s. 158;
R.S., 1985, c. 31 (1st Supp.), ss. 51, 60;
1998, c. 35, s. 42.
Report of custodyThe officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.ContentsThe report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.Representations concerning releaseBefore the report of custody is delivered to the custody review officer,a copy of the report and the account in writing must be provided to the person in custody; andthe person in custody must be given the opportunity to make representations concerning the person’s release from custody.Representations to be reduced to writingRepresentations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.Accompanying documentsWhen the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.
1998, c. 35, s. 42.
Initial ReviewReview of report of custodyThe custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.Duty to releaseAfter reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1).
1998, c. 35, s. 42.
Continuing duty to releaseIf, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody.
1998, c. 35, s. 42.
Duty to retain in custody if designated offenceNotwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody.
1998, c. 35, s. 42.
Duty to review where charge not laidIf a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody.
1998, c. 35, s. 42.
Release with or without conditionsThe custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:remain under military authority;report at specified times to a specified military authority;remain within the confines of a specified defence establishment or at a location within a geographical area;abstain from communicating with any witness or specified person, or refrain from going to any specified place; andcomply with such other reasonable conditions as are specified.ReviewA direction to release a person with or without conditions may, on application, be reviewed byif the custody review officer is an officer designated by a commanding officer, that commanding officer; orif the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.PowersAfter giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1).
1998, c. 35, s. 42.
Review by Military JudgeHearing by military judgeA custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.Applicable operational considerationsIn determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed.
R.S., 1985, c. N-5, s. 159;
R.S., 1985, c. 31 (1st Supp.), s. 52;
1998, c. 35, s. 42.
Onus on Canadian ForcesWhen the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.
1998, c. 35, s. 42.
Justification for retention in custodyFor the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:custody is necessary to ensure the person’s attendance before a service tribunal or a civil court to be dealt with according to law;custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of justice; andany other just cause has been shown, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
1998, c. 35, s. 42.
Onus on person in custodyNotwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.Release on undertakingIf the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.
1998, c. 35, s. 42.
Release with or without undertakingThe military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.Variation of undertakingThe undertaking under which a person is released may be variedby direction of a military judge on application with reasonable notice being given; orwith the written consent of the person and the Director of Military Prosecutions.
1998, c. 35, s. 42.
Hearing may be adjournedThe military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.
1998, c. 35, s. 42.
Alternate means of hearingThe military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.Representations and factors to be consideredIn deciding whether to make the direction, the military judge shall take into accountthe location of the person in custody;the gravity of the offence;the circumstances under which the unit or element detaining the person in custody is deployed;the availability of counsel for the Canadian Forces and the person in custody;the limitations of available telecommunications devices;the time required to bring the person in custody and the person’s counsel before the military judge; andany other matter that the military judge considers relevant.
1998, c. 35, s. 42.
ReasonsThe military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.
1998, c. 35, s. 42.
Duty of Director of Military ProsecutionsReview after 90 daysIf the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.
1998, c. 35, s. 42.
Review by Court Martial Appeal CourtReview of directionAt any time before the commencement of a person’s trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.Application of provisionsThe provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.
1998, c. 35, s. 42.
Commencement of ProceedingsInterpretationDefinition of commanding officerIn this Division, commanding officer, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.
R.S., 1985, c. N-5, s. 160;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1998, c. 35, s. 42.
Laying of ChargeLaying of chargeProceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.
R.S., 1985, c. N-5, s. 161;
1998, c. 35, s. 42.
Referral to commanding officerAfter a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.
1998, c. 35, s. 42.
Duty to Act ExpeditiouslyDuty to act expeditiouslyCharges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
R.S., 1985, c. N-5, s. 162;
1998, c. 35, s. 42;
2008, c. 29, s. 3.
Previous VersionRight to Trial by Court MartialElectionExcept in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.
1998, c. 35, s. 42.
Referral of chargeWhen an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.
1998, c. 35, s. 42.
Summary TrialsInterpretationDefinitionsThe definitions in this section apply in this Division.commanding officercommandantcommanding officer, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160.superior commandercommandant supérieursuperior commander means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander.
1998, c. 35, s. 42.
Summary Trials by Commanding OfficersJurisdictionA commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; andthe commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.Limitation periodA commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.Prohibition on presidingUnless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence ifthe commanding officer carried out or directly supervised the investigation of the offence;the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; orthe commanding officer laid the charge or caused it to be laid.SentencesSubject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:detention for a period not exceeding thirty days;reduction in rank by one rank;severe reprimand,reprimand,a fine not exceeding basic pay for one month, andminor punishments.DelegationA commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:detention not exceeding fourteen days;severe reprimand;reprimand;a fine not exceeding basic pay for fifteen days; andminor punishments.
R.S., 1985, c. N-5, s. 163;
R.S., 1985, c. 31 (1st Supp.), ss. 53, 60;
1991, c. 43, s. 14;
1998, c. 35, s. 42;
2008, c. 29, s. 4.
Previous VersionWhen no summary trialA commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, toanother officer who has jurisdiction to try the accused person by summary trial; oran officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.Subsequent proceedings not precludedA decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.Charge may be referredIf a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).
1998, c. 35, s. 42.
Summary Trial by Superior CommandersJurisdictionA superior commander may try an accused person by summary trial if all of the following conditions are satisfied:the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; andthe superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.Limitation periodA superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.Prohibition on presidingUnless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence ifthe superior commander carried out or directly supervised the investigation of the offence;the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; orthe superior commander laid the charge or caused it to be laid.ExceptionA superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.SentencesSubject to the conditions set out in Division 2 relating to punishments, a superior commander at a summary trial may pass a sentence in which any one or more of the following punishments may be included:severe reprimand;reprimand; andfine.
R.S., 1985, c. N-5, s. 164;
R.S., 1985, c. 31 (1st Supp.), s. 60;
1991, c. 43, s. 15;
1998, c. 35, s. 42;
2008, c. 29, s. 5.
Previous VersionWhen no summary trialA superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, toanother officer who has jurisdiction to try the accused person by summary trial; oran officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.Subsequent proceedings not precludedA decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.Charge may be referredIf a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).
1998, c. 35, s. 42.
Referral to Director of Military ProsecutionsDuty to referSubject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.ExceptionWhere the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial ifthe charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; andthe officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.
1998, c. 35, s. 42.
Trial by Court MartialCharge must be PreferredCharge must be preferredA person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.Meaning of “prefer”For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.
R.S., 1985, c. N-5, s. 165;
1992, c. 16, s. 2;
1998, c. 35, s. 42.
Director of Military ProsecutionsAppointmentThe Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Military Prosecutions.Tenure of office and removalThe Director of Military Prosecutions holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.Powers of Inquiry CommitteeThe Inquiry Committee is deemed to have the powers of a court martial.Re-appointmentThe Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.
1992, c. 16, s. 2;
1998, c. 35, s. 42.
Duties and functionsThe Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.
1998, c. 35, s. 42.
Preferring chargesWhen a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions mayprefer the charge; orprefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.Withdrawing chargesThe Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.Effect of withdrawing chargeWithdrawing a charge does not preclude it from being proceeded with at any subsequent time.
1998, c. 35, s. 42.
Referral of chargeIf the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.
1998, c. 35, s. 42.
[Repealed, 2008, c. 29, s. 6]Previous VersionBarristers and advocates to assistThe Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.
1998, c. 35, s. 42.
Acting Director of Military ProsecutionsThe powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.
1998, c. 35, s. 42.
Relationship to Judge Advocate GeneralThe Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.General instructionsThe Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.Specific instructionsThe Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.Availability to publicThe Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.ExceptionSubsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.Copies to MinisterThe Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.
1998, c. 35, s. 42.
Court Martial AdministratorAppointmentThere shall be a person appointed to be the Court Martial Administrator.
1998, c. 35, s. 42.
DutiesThe Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.Other dutiesThe Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.Relationship to Chief Military JudgeThe Court Martial Administrator acts under the general supervision of the Chief Military Judge.
1998, c. 35, s. 42;
2008, c. 29, s. 7.
Previous VersionConvening General Court MartialThe Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet isan offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;an offence punishable under section 130 that is punishable by imprisonment for life; oran offence punishable under section 130 that is referred to in section 469 of the Criminal Code.Consent to be tried by Standing Court MartialAn accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.Withdrawal of consentThe consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.
2008, c. 29, s. 8.
Convening Standing Court MartialThe Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet isan offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; oran offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.
2008, c. 29, s. 8.
Choice of accusedAn accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.NotificationThe Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).Failure to make choiceIf the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.New choice — as of rightThe accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.New choice — with consentThe accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.Two or more accusedIf charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.Convening of court martialThe Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.
2008, c. 29, s. 8.
Acting Court Martial AdministratorThe duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.
1998, c. 35, s. 42.
Military JudgesAppointmentThe Governor in Council may appoint officers who are barristers or advocates of at least ten years standing at the bar of a province to be military judges.Removal for causeA military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.Powers of Inquiry CommitteeThe Inquiry Committee is deemed to have the powers of a court martial.Ceasing to hold officeA military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.ResignationA military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.
1998, c. 35, s. 42;
2011, c. 22, s. 2.
Previous VersionRemunerationThe rates and conditions of issue of pay of military judges shall be prescribed by the Treasury Board in regulations.Review of remunerationThe remuneration of military judges shall be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council.
1998, c. 35, s. 42.
Judicial duties and functionsMilitary judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.Other duties and functionsIn addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.Boards of inquiryMilitary judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.
1998, c. 35, s. 42.
Chief Military JudgeChief Military JudgeThe Governor in Council may designate a military judge to be the Chief Military Judge.
1998, c. 35, s. 42.
Duties and functionsThe Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.
1998, c. 35, s. 42.
Acting Chief Military JudgeThe Chief Military Judge may authorize any military judge to perform the duties and functions of the Chief Military Judge.
1998, c. 35, s. 42.
DelegationThe Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.
1998, c. 35, s. 42.
General Courts MartialJurisdictionA General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
R.S., 1985, c. N-5, s. 166;
1998, c. 35, s. 42.
Punishment limitationA General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.
2008, c. 29, s. 9.
CompositionA General Court Martial is composed of a military judge and a panel of five members.Rank of senior memberThe senior member of the panel must be an officer of or above the rank of colonel.Rank for trial of officerIf the accused person is an officer, all of the members of the panel must be officers.Ranks for trial of brigadier-general or aboveIf the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.Rank for trial of colonelIf the accused person is of the rank of colonel, all of the members of the panel, except the senior member, must be of or above the rank of lieutenant-colonel.Rank for trial of lieutenant-colonelIf the accused person is of the rank of lieutenant-colonel, at least two of the members of the panel must be of or above the rank of lieutenant-colonel.Rank for trial of non-commissioned memberIf the accused person is a non-commissioned member, two non-commissioned members who are of the rank of warrant officer or above must be appointed as members of the panel and the other three members must be officers.
R.S., 1985, c. N-5, s. 167;
1992, c. 16, s. 3;
1998, c. 35, s. 42.
Ineligibility to serveNone of the following persons may sit as a member of the panel of a General Court Martial:an officer or non-commissioned member who is a lawyer or notary;a witness for the prosecution or the accused person;the commanding officer of the accused person;an officer or non-commissioned member appointed for the purposes of section 156;an officer below the rank of captain;any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; oran officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.
R.S., 1985, c. N-5, s. 168;
1992, c. 16, s. 4;
1998, c. 35, s. 42.
[Repealed, 2008, c. 29, s. 10]Previous Version[Repealed, 2008, c. 29, s. 10]Previous Version[Repealed, 2008, c. 29, s. 10]Previous Version[Repealed, 2008, c. 29, s. 10]Previous VersionStanding Courts MartialJurisdictionA Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
R.S., 1985, c. N-5, s. 173;
1992, c. 16, s. 6;
1998, c. 35, s. 42;
2008, c. 29, s. 11.
Previous VersionCompositionEvery military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.
R.S., 1985, c. N-5, s. 174;
1992, c. 16, s. 6;
1998, c. 35, s. 42.
Punishment limitationA Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.
R.S., 1985, c. N-5, s. 175;
1991, c. 43, s. 16;
1998, c. 35, s. 42;
2008, c. 29, s. 12.
Previous Version[Repealed, 2008, c. 29, s. 12]Previous Version[Repealed, 2008, c. 29, s. 12]Previous Version[Repealed, 2008, c. 29, s. 12]Previous VersionPowersCourts martialA court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect tothe attendance, swearing and examination of witnesses;the production and inspection of documents;the enforcement of its orders; andall other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.Military judgesSubsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.
R.S., 1985, c. N-5, s. 179;
R.S., 1985, c. 31 (1st Supp.), s. 56;
1998, c. 35, s. 42.
Admission to Courts MartialTrials publicSubject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.ExceptionA court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessaryin the interests of public safety, defence or public morals;for the maintenance of order or the proper administration of military justice; orto prevent injury to international relations.WitnessesWitnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.Clearing courtFor the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
R.S., 1985, c. N-5, s. 180;
1992, c. 16, s. 8;
1998, c. 35, s. 43;
2001, c. 41, s. 101.
Rules of EvidenceRegulations to establish rulesSubject to this Act, the rules of evidence at trials by court martial shall be such as are established by regulations made by the Governor in Council.PublicationNo regulation made under this section is effective until it has been published in the Canada Gazette and every such regulation shall be laid before Parliament within fifteen days after it is made or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session.
R.S., c. N-4, s. 158.
Admission of documents and recordsSuch classes of documents and records as are prescribed in regulations made by the Governor in Council may be admitted, as evidence of the facts therein stated, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of those classes of documents and records or copies thereof shall be as prescribed in those regulations.Statutory declarations admissible, subject to conditionsA court martial may receive, as evidence of the facts therein stated, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:where the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;where the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; andat any time before the trial, the party served with a copy of the declaration pursuant to paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.
R.S., c. N-4, s. 159.
Witnesses at Courts MartialProcurement of attendance of witnessesThe commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.ExceptionNothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.Procurement of attendance in exceptional casesWhere a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.Reimbursement of accused for fees and expensesWhere the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.Rights of accused preservedNothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire.
R.S., 1985, c. N-5, s. 183;
1998, c. 35, s. 44.
Evidence on CommissionAppointment of commissioner to take evidenceThe Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martialwho is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;who is absent from the country in which the trial is held; orwhose attendance is not readily obtainable for a good and sufficient reason.Admissibility of commission evidenceThe document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.Power to require personal attendance of witnessWhere, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of justice, appear and give evidence before the court martial and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.Representation, examination and cross-examination before commissionerAt any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.
R.S., 1985, c. N-5, s. 184;
1998, c. 35, s. 45.
Copy to accusedThe accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).
R.S., c. N-4, s. 161.
ObjectionsObjectionsWhen a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.ReplacementsThe procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.
R.S., 1985, c. N-5, s. 186;
1998, c. 35, s. 46.
Preliminary ProceedingsPreliminary proceedingsAt any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.
R.S., 1985, c. N-5, s. 187;
1992, c. 16, s. 9;
1998, c. 35, s. 46;
2008, c. 29, s. 13.
Previous VersionAmendment of ChargesAmendment if defence not prejudicedWhere it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person’s defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.Adjournment on amendment of chargeWhere a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.Minute of amendmentWhere a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.
R.S., 1985, c. N-5, s. 188;
1998, c. 35, s. 46.
AdjournmentsAdjournmentA court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.
R.S., 1985, c. N-5, s. 189;
1998, c. 35, s. 46.
ViewsAuthority for viewingA court martial may view any place, thing or person.
R.S., 1985, c. N-5, s. 190;
1991, c. 43, s. 17;
1992, c. 16, s. 10;
1998, c. 35, s. 46.
Decisions of General Court MartialQuestions of lawThe military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.
R.S., 1985, c. N-5, s. 191;
1998, c. 35, s. 46;
2008, c. 29, s. 14.
Previous VersionPlea of guiltyAt any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
2008, c. 29, s. 14.
Decision of panelThe members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.DecisionA decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.
R.S., 1985, c. N-5, s. 192;
1992, c. 16, s. 11;
1998, c. 35, s. 46;
2008, c. 29, s. 14.
Previous VersionDisagreement of panelIf the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.Dissolution of court martialIf a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.
2008, c. 29, s. 14.
SentenceThe military judge presiding at a General Court Martial determines the sentence.
R.S., 1985, c. N-5, s. 193;
1998, c. 35, s. 46;
2008, c. 29, s. 14.
Previous VersionSimilar OffencesSimilar offences may be considered in imposing sentenceA court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.RestrictionIf a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.
R.S., 1985, c. N-5, s. 194;
1998, c. 35, s. 46.
Pronouncement of Findings and SentenceManner and effective date of pronouncementThe finding and sentence of a court martial shall, at the conclusion of the trial of the offender so sentenced, be pronounced in open court to the offender, who shall be under the sentence as of the date of the pronouncement thereof.
R.S., c. N-4, s. 170.
Death or IncapacityDeath or incapacity to continue of judgeWhere the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the “replacement judge”, assigned by the Chief Military Judge.When finding not pronouncedIf the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judgein the case of a General Court Martial, may order that the court martialcontinue from the stage at which it was when it was deemed to be adjourned, orcommence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; andin the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced.Adjudications and evidenceIn the case of a court martial continued under subparagraph (2)(a)(i),if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; andif any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.When finding pronouncedIf the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.
R.S., 1985, c. N-5, s. 196;
1998, c. 35, s. 47;
2008, c. 29, s. 15.
Previous VersionDissolutionIf, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.Illness of accusedWhere, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.Unfit to stand trialWhere a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.Effect of dissolutionWhere a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.
1998, c. 35, s. 47;
2008, c. 29, s. 16.
Previous VersionForensic DNA AnalysisDefinitionsThe definitions in this section apply in this Division.CommissionercommissaireCommissioner means the Commissioner of the Royal Canadian Mounted Police.designated offenceinfraction désignéedesignated offence means a primary designated offence or a secondary designated offence.DNAADNDNA means deoxyribonucleic acid.DNA profileprofil d’identification génétiqueDNA profile means the results of forensic DNA analysis.forensic DNA analysisanalyse génétiqueforensic DNA analysisin relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; andin relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance.peace officeragent de la paixpeace officer meansa police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; oran officer or a non-commissioned member of the Canadian Forces who is appointed for the purpose of section 156 or employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.prescribed formformulaire réglementaireprescribed form means a form prescribed in the regulations made by the Governor in Council.primary designated offenceinfraction primaireprimary designated offence means an offence within the meaning of paragraph (a) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;an offence within the meaning of any of paragraphs (a.1) to (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; andan attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.01) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130.secondary designated offenceinfraction secondairesecondary designated offence meansan offence within the meaning of any of paragraphs (a) to (d) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;an offence under any of the following provisions of this Act:paragraph 77(a) (violence to person bringing materiel to forces),section 79 (mutiny with violence),section 84 (striking a superior officer),paragraph 87(b) (violence while in custody),section 95 (striking a subordinate),paragraph 107(a) (endangering a person on an aircraft), orsection 127 (handling of dangerous substances); andan attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b).
2000, c. 10, s. 1;
2005, c. 25, s. 23;
2007, c. 22, ss. 35, 48;
2010, c. 17, s. 46.
Previous VersionInformation for DNA warrantA military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of justice to do so and that there are reasonable grounds to believethat a designated offence has been committed;that a bodily substance has been found or obtainedat the place where the offence was committed,on or within the body of the victim of the offence,on anything worn or carried by the victim at the time the offence was committed, oron or within the body of any person or thing or at any place associated with the commission of the offence;that the person subject to the Code of Service Discipline was a party to the offence; andthat forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.CriteriaIn considering whether to issue the warrant, the military judge shall have regard to all relevant matters, includingthe nature of the offence and the circumstances surrounding its commission; andwhether there isa peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, oranother person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.
2000, c. 10, s. 1.
TelewarrantsIf a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.Contents of informationAn information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; anda statement as to any prior application for a warrant under this section.Oath in writingIf the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.Information filed with Court Martial AdministratorThe military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.Formalities respecting warrant and facsimilesWhen a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; andthe judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.Issuance of warrant — telecommunication in written formWhen a military judge issues a warrant by a means of telecommunication in written form,the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);the peace officer shall procure another facsimile of the warrant; andthe judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.Proof of authorizationIn any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.Duplicates and facsimiles acceptableA duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).
2000, c. 10, s. 1.
Order — primary designated offencesA court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition primary designated offence in section 196.11 when the person is sentenced.Order — primary designated offencesA court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) or (b) of the definition primary designated offence in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.Order — persons found not responsible and secondary designated offencesA court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation toa person who is found not responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; ora person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced.In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for the decision.Order to offenderWhen a court martial makes an order authorizing the taking of samples of bodily substances, it may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.
2000, c. 10, s. 1;
2005, c. 25, s. 24;
2007, c. 22, ss. 36, 48.
Previous Version[Repealed, 2007, c. 22, s. 5]Previous VersionTiming of orderThe court martial may make an order under section 196.14 authorizing the taking of samples of bodily substances either when it imposes a sentence on a person or finds them not responsible on account of mental disorder or at a later date if it adjourns the proceedings after it imposes the sentence or makes the finding.Hearing by new court martialIf the court martial does not consider the matter at that time,the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; andfor greater certainty, the person who may be made subject to the order continues to be liable to be dealt with under the Code of Service Discipline for the purpose of the hearing.
2000, c. 10, s. 1;
2005, c. 25, s. 25;
2007, c. 22, s. 5;
2008, c. 29, s. 17.
Previous VersionFailure to appearIf a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.Warrant in forceThe warrant may be executed anywhere in or outside Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.
2005, c. 25, s. 25;
2007, c. 22, s. 5.
When collection to take placeSamples of bodily substances shall be taken as authorized under section 196.14at the place, day and time set out in an order made under subsection 196.14(4) or as soon as feasible afterwards; orin any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.When collection to take placeSamples of bodily substances shall be taken as authorized under section 196.24at the place, day and time set out in an order made under subsection 196.24(4) or as soon as feasible afterwards; orin any other case, as soon as feasible after the authorization is granted.When collection to take placeIf a person fails to appear as required by an order made under subsection 196.14(4) or 196.24(4), samples of bodily substances shall be takenwhen the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; oras soon as feasible after the person appears at the place set out in the order if no warrant is issued.AppealSubsections (1) to (1.2) apply even if the order or authorization to take the samples of bodily substances is appealed.Collection of samplesA peace officer who is authorized under section 196.14 or 196.24 to take samples of bodily substances may cause the samples to be taken in any place in or outside Canada in which the person who is subject to the order or authorization is located.Who collects samplesThe samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.
2000, c. 10, s. 1;
2005, c. 25, s. 26;
2007, c. 22, s. 37.
Previous VersionReport of peace officerA peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in the prescribed form and cause the report to be filed withthe military judge who issued the warrant under section 196.12 or 196.13 or who granted the authorization under section 196.24, or another military judge; orthe Court Martial Administrator, in the case of an order made by a court martial under section 196.14.Contents of reportThe report shall state the time and date the samples were taken, and describe the bodily substances that were taken.Copy of reportThe peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.Unexecuted telewarrantIf a peace officer does not execute a warrant that was issued in accordance with section 196.13, the peace officer must make a report stating the reasons why the warrant was not executed.
2000, c. 10, s. 1;
2007, c. 22, s. 38.
Previous VersionNo criminal or civil liabilityNo peace officer, and no person acting under a peace officer’s direction, incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24.
2000, c. 10, s. 1;
2007, c. 22, s. 39.
Previous VersionInvestigative proceduresA peace officer, or a person acting under a peace officer’s direction, is authorized by a warrant issued under section 196.12 or 196.13, an order made under section 196.14 or an authorization granted under section 196.24 to take samples of bodily substances by any of the following means:the plucking of individual hairs, including the root sheath;the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; orthe taking of blood by pricking the skin surface with a sterile lancet.Terms and conditionsThe warrant or order shall include any terms and conditions that the military judge or court martial considers advisable to ensure that the taking of the samples is reasonable in the circumstances.FingerprintsA peace officer who is authorized to take samples of bodily substances from a person by an order made under section 196.14 or an authorization granted under section 196.24, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.
2000, c. 10, s. 1;
2007, c. 22, s. 40.
Previous VersionDuty to informBefore taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24, a peace officer shall inform the person ofthe contents of the warrant or order;the nature of the investigative procedures by means of which the samples are to be taken;the purpose of taking the samples;the authority of the peace officer and any person acting under the officer’s direction to use as much force as is reasonably necessary for the purpose of taking the samples; andin the case of samples of bodily substances taken in execution of a warrant, the possibility that the results of forensic DNA analysis may be used in evidence.Detention of personA person from whom samples of bodily substances are to be taken may, for that purpose, be detained for a period that is reasonable in the circumstances and be required to accompany a peace officer.Respect of privacyA peace officer, or any person acting under a peace officer’s direction, who takes samples of bodily substances from a person shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.
2000, c. 10, s. 1;
2007, c. 22, s. 41.
Previous VersionVerificationBefore taking samples of bodily substances from a person under an order made under section 196.14 or an authorization granted under section 196.24, a peace officer, or a person acting under their direction, shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains the person’s DNA profile.DNA profile in data bankIf the person’s DNA profile is in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall not take any bodily substances from the person but shallconfirm in writing on the order or authorization that they have been advised that the person’s DNA profile is in the national DNA data bank; andtransmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.DNA profile not in data bankIf the person’s DNA profile is not in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall execute the order or authorization and transmit to the Commissionerany bodily substances taken; anda copy of the order or authorization and any other information prescribed by regulations made under the DNA Identification Act.
2000, c. 10, s. 1;
2005, c. 25, s. 27;
2007, c. 22, s. 42.
Previous VersionDestruction of bodily substances, etc.Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 196.12 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay afterthe results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; orthe expiry of one year after the charge is withdrawn unless during that year the person is again charged with the designated offence or any other offence in respect of the same transaction.ExceptionA military judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the judge considers appropriate if the judge is satisfied that they might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.Destruction of bodily substances, etc., voluntarily givenBodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person.
2000, c. 10, s. 1.
Collection of additional bodily substancesA military judge may, on ex parte application made in the prescribed form within a reasonable time, authorize, in the prescribed form, the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose ifa DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 196.14; orthe information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.ReasonsThe application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.For greater certaintyFor greater certainty, the person who may be made subject to the authorization continues to be liable to be dealt with under the Code of Service Discipline for that purpose.Persons not in custodyIf the military judge authorizes the taking of samples of bodily substances from a person who is not in custody, an order in the prescribed form shall be directed to the person requiring them to report at the place, day and time set out in the order and submit to the taking of the samples.
2000, c. 10, s. 1;
2005, c. 25, s. 28;
2007, c. 22, s. 43.
Previous VersionReview by Director of Military ProsecutionsOn receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or an authorization granted under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.Clerical errorIf the Director of Military Prosecutions is of the opinion that the defect is due to a clerical error, the Director shallapply, ex parte, to the military judge who made the order, or to another military judge, to have it corrected; andtransmit a copy of the corrected order or authorization, if any, to the Commissioner.Substantive defectIf the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall inform the Commissioner of that opinion.No defectIf the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is a designated offence, the Director shall transmit that opinion, with written reasons, to the Commissioner.
2005, c. 25, s. 29;
2007, c. 22, s. 44.
Order denying access to information used to obtain a warrantA military judge may, on application made at the time of issuing a warrant, make an order prohibiting access to and the disclosure of any information relating to the warrant on the ground thatthe ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; andthe ground referred to in paragraph (a) outweighs in importance the access to the information.ReasonsFor the purpose of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosureif disclosure of the information wouldcompromise the identity of a confidential informant,compromise the nature and extent of an ongoing investigation,endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, orprejudice the interests of an innocent person; andfor any other sufficient reason.ProcedureIf an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the military judge considers desirable in the circumstances, including terms and conditions concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the military judge immediately on determination of the application, and that packet shall be kept in the custody of the Court Martial Administrator in a place to which the public has no access or in any other place that the judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).Application for variance of orderAn application to terminate the order or vary any of its terms and conditions may be made to the military judge who made the order or to another military judge.
2000, c. 10, s. 1.
Identification of Accused Persons and OffendersMeaning of designated offenceIn this Division, designated offence means an offence under any of the following provisions of this Act:paragraphs 75(a) to (d) (offences related to security);paragraphs 77(a) and (d) to (i) (offences related to operations);section 78 (spying for the enemy);section 79 (mutiny with violence);section 80 (mutiny without violence);paragraphs 81(a) and (b) (offences related to mutiny);section 84 (striking or offering violence to a superior officer);paragraphs 87(a) to (c) (resisting arrest or custody);section 95 (abuse of subordinates);section 100 (setting free without authority or allowing or assisting escape);section 101 (escape from custody);section 101.1 (failure to comply with conditions);section 102 (hindering arrest or confinement or withholding assistance);paragraphs 111(1)(a) and (b) (improper driving of vehicles);section 113 (causing fires);section 114 (stealing);section 115 (receiving);paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;section 118 (offences in relation to tribunals);section 118.1 (failure to appear or attend);section 119 (false evidence);section 124 (negligent performance of duties), if the negligence results in death or bodily harm;section 127 (negligent handling of dangerous substances);section 128 (conspiracy); orsection 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.
2002, c. 13, s. 88.
Fingerprints and photographsAny person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.Use of forceSuch force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).PublicationThe results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.
2002, c. 13, s. 88.
No liability for acting under this DivisionNo civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).
2002, c. 13, s. 88.
Destruction of fingerprints, photographs, etc.Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delayif the person is tried by summary trial in respect of that charge; oron application by the person, if the charge has not been proceeded with in the three years after the charge is laid.
2002, c. 13, s. 88.
Mental DisorderInterpretationDefinitionsFor the purposes of this Division,appropriate provinceprovince concernéeappropriate province meansin respect of a court martial held in Canada, the province in which it is held, orin respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person;assessmentévaluationassessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person;medical practitionermédecinmedical practitioner means a person who is entitled to practise medicine by the laws of a province;Review Boardcommission d’examenReview Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code.
R.S., 1985, c. N-5, s. 197;
1991, c. 43, s. 18;
1998, c. 35, s. 92.
Fitness to Stand TrialPresumption of fitnessAn accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial.Court directs issue to be triedSubject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial.Burden of proofAn accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial.Order for assessmentSubject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person.Subsequent proceedingsA finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial.
R.S., 1985, c. N-5, s. 198;
1991, c. 43, s. 18.
Postponing trial of issueWhere the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.Issue not triedWhere a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried.
R.S., 1985, c. N-5, s. 199;
1991, c. 43, s. 18.
Trial proceeds where accused fit to stand trialWhere the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen.Procedure where accused unfit to stand trialWhere the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shallset aside any plea that has been made; andhold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay.Order for assessmentSubject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person.
R.S., 1985, c. N-5, s. 200;
1991, c. 43, s. 18;
2005, c. 22, s. 61(F).
Previous VersionDispositionWhere a court martial makes a disposition pursuant to subsection 200(2), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; orby order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.Treatment not a conditionNo order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.
R.S., 1985, c. N-5, s. 201;
1991, c. 43, s. 18;
1997, c. 18, s. 130.
Treatment dispositionWhere the finding on trial of the issue is that an accused person is unfit to stand trial and the court martial has not made a disposition under section 201, the court martial may, on application by the prosecutor, by order, direct that treatment of the accused person be carried out for a specified period not exceeding sixty days, subject to such conditions as the court martial considers appropriate, and, where the accused person is not detained in custody, direct that the accused person submit to that treatment by the person or at the place specified in the order.ConditionNo disposition may be made under this section unless the court martial is satisfied, on the basis of evidence described in subsection (3), that a specific treatment should be administered to the accused person for the purpose of making the accused person fit to stand trial.Evidence requiredThe evidence required by a court martial for the purposes of subsection (2) shall be a statement by a medical practitioner that the practitioner has made an assessment of the accused person and is of the opinion, based on the grounds specified, thatthe accused person, at the time of the assessment, was unfit to stand trial;the psychiatric treatment and any other related medical treatment specified by the practitioner will likely render the accused person fit to stand trial within a period not exceeding sixty days and that without that treatment the accused person is likely to remain unfit to stand trial;the risk of harm to the accused person from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; andthe psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (2), taking into consideration the opinions stated in paragraphs (b) and (c).NoticeA court martial shall not make a disposition under this section unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.Challenge by accused personOn receipt of the notice referred to in subsection (3.1), an accused person may challenge an application of the prosecutor under this section, and may adduce any evidence for that purpose.ExceptionA court martial shall not direct, and no direction given pursuant to a disposition made under this section shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment prescribed in regulations.DefinitionsIn subsection (5), electro-convulsive therapy and psychosurgery have the meaning assigned by the regulations.Consent of hospital required for treatmentA court martial shall not make a disposition under this section without the consent of the person in charge of the hospital or place where the accused person is to be treated or of the person to whom responsibility for the treatment of the accused person is assigned by the court martial.Consent of accused person not required for treatmentA court martial may direct that treatment of an accused person be carried out pursuant to a disposition made under this section without the consent of the accused person or a person who, according to the laws of the jurisdiction where the disposition is made, is authorized to consent for the accused person.
R.S., 1985, c. N-5, s. 202;
1991, c. 43, s. 18;
1997, c. 18, s. 131.
Where Review Board or chairperson sends accused back to court martialWhere a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.Convening court martialOn receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen.Custody in hospitalNotwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.Burden and standard of proofIn proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.
1991, c. 43, s. 18;
1998, c. 35, s. 49.
Accused person to remain in hospitalNotwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.
1991, c. 43, s. 18.
Prima facie caseIf a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trialnot later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; orat any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person.Extension of time for holding inquiryDespite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.Where prima facie case not madeIf, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.
1991, c. 43, s. 18;
1993, c. 34, s. 94(F);
1997, c. 18, s. 132;
1998, c. 35, s. 50;
2005, c. 22, ss. 48, 61(F);
2008, c. 29, s. 18.
Previous VersionRecommendation of Review BoardThe Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial ifthe Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; andon the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion thatthe accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, andthe accused person does not pose a significant threat to the safety of the public.NoticeIf the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.Obligation of court martialAs soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, the inquiry if the court martial determines that it is appropriate.Inquiry may be conductedSubject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, thatthe accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; andthe accused person does not pose a significant threat to the safety of the public.Power to order an assessmentSubject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.Assessment orderIf the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.StayThe court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfiedon the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;that the accused does not pose a significant threat to the safety of the public; andthat a stay is in the interests of the proper administration of justice.Proper administration of justiceIn order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:the nature and seriousness of the alleged offence;the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; andany other factor that the court martial considers relevant.Effect of stayIf a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.
2005, c. 22, s. 49;
2008, c. 29, s. 19.
Previous VersionMental Disorder When Offence CommittedDefence of mental disorderNo accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.PresumptionEvery person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.Burden of proofThe burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.Assessment orderSubject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.
1991, c. 43, s. 18.
Finding of not responsible on account of mental disorderIf a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.EffectsWhere a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, butthe accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;any service tribunal or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;[Repealed, 1998, c. 35, s. 51]the finding may be considered in making an order under Division 3 in respect of that person;the finding may be considered in determining, under section 249.13 or 249.14, whether to substitute, mitigate, commute or remit a punishment included in a sentence imposed against that person for any other offence;the finding does not include a finding or determination respecting civil liability; andthe Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.Finding not previous convictionA finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions.
1991, c. 43, s. 18;
1998, c. 35, s. 51;
2005, c. 25, s. 30;
2007, c. 5, s. 3;
2012, c. 1, ss. 152, 160.
Previous VersionDisposition hearingWhere a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay.Assessment orderSubject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.
1991, c. 43, s. 18;
2005, c. 22, s. 61(F).
Previous VersionDispositionWhere a court martial makes a disposition pursuant to subsection 202.15(1), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:by order, direct that the accused person be released from custody without conditions where, in the opinion of the court martial, the accused person is not a significant risk to the safety of the public;by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; orby order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.Treatment not a conditionNo order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.
1991, c. 43, s. 18;
1997, c. 18, s. 133.
General Provisions Respecting Assessment Orders, Dispositions and Assessment ReportsConditions for custodyAn accused person shall not be placed in custody under an assessment order made by a court martial under this Division unlessthe court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; orthe prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e).Report of medical practitioner in writingFor the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing.No treatment order on assessmentNo assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment.
1991, c. 43, s. 18;
1998, c. 35, ss. 52(E), 92;
2005, c. 22, s. 50.
Previous VersionNo custody or release orders during assessmentDuring the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.Variation of assessment orderSubject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances.
1991, c. 43, s. 18;
1998, c. 35, ss. 53, 92;
2005, c. 22, s. 51.
Previous VersionAssessment reportAn assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.Assessment report to be filed with courtAn assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.Distribution of assessment reportSubject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.Assessment report part of recordSubject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared.
1991, c. 43, s. 18;
2005, c. 22, s. 52.
Previous VersionEffective date of dispositionA disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.
1991, c. 43, s. 18;
2005, c. 22, s. 53.
Previous VersionStatus quo pending Review Board’s hearingWhere a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201, 202 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board.Variation of orderNotwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board.Subsequent court martial order takes precedencePending a disposition by the Review Board, where a court martialmakes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person; orimposes a sentence of imprisonment or detention on the accused person, that sentence takes precedence over any prior disposition made under paragraph 201(1)(b) or 202.16(1)(c).Disposition takes precedence over probation orderWhere a disposition is made under paragraph 201(1)(b) or 202.16(1)(c) and the accused person is convicted or discharged conditionally under the Criminal Code by a civil court in respect of another offence but is not sentenced to a term of imprisonment in respect of that other offence, the disposition shall come into force and, notwithstanding any provision of the Criminal Code, takes precedence over any probation order made in respect of the offence.
1991, c. 43, s. 18;
2005, c. 22, s. 54.
Previous VersionProcedural irregularitiesAny procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby.Reasons for disposition and copies to be providedAfter making a disposition in respect of an accused person under section 201, 202 or 202.16, a court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons.Transmittal of transcript to Review BoardIf a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.Transmittal of transcript to Review BoardIf the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.Order of committalWhere a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation.
1991, c. 43, s. 18;
2005, c. 22, ss. 55, 61(F).
Previous VersionDefinition of justiceIn this section, justice means a justice as defined in section 2 of the Criminal Code.Arrest without warrant for contravention of dispositionAn officer, a non-commissioned member appointed for the purposes of section 156, or any other peace officer within the meaning of the Criminal Code, may arrest an accused person without a warrant if they have reasonable grounds to believe that the accused personis at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; orhas contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.Accused person released subject to conditionsAn officer, a non-commissioned member or another peace officer who makes an arrest under subsection (2) may, as soon as possible, release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.Continued detentionThe officer, non-commissioned member or other peace officer shall not release the accused person if they believe on reasonable groundsthat it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need toestablish the identity of the accused person,establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),prevent the commission of an offence, orprevent the accused person from doing anything referred to in paragraph (2)(a) or (b); orthat the accused person is subject to a disposition or an assessment order of a Review Board of another province.Accused person brought before justice or commanding officerAn accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.Justice or commanding officer not availableIf a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.Release of accused personA justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.NoticeIf the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.Order pending decision of Review BoardIf a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.Powers of Review BoardWhere a Review Board receives a notice pursuant to subsection (4), it may exercise the powers and shall perform the duties referred to in the Criminal Code in respect of the accused person as if the Review Board were conducting a review of a disposition.
1991, c. 43, s. 18;
2005, c. 22, ss. 56, 61(F).
Previous VersionProtected StatementsDefinition of protected statementIn this section, protected statement means a statement made by the accused person, during the course and for the purposes of an assessment ordered under this Division or treatment directed by a disposition made under section 202, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.Protected statements not admissible against accusedNo protected statement or reference to a protected statement made by an accused person is admissible in evidence, without the consent of the accused person, in any proceeding before a court, court martial, tribunal, body or person with jurisdiction to compel the production of evidence.ExceptionsNotwithstanding subsection (2), evidence of a protected statement is admissible for the purpose ofdetermining whether the accused person is unfit to stand trial;making a disposition or placement decision respecting the accused person;[Repealed, 2005, c. 22, s. 57]determining whether the balance of the mind of the accused person was disturbed at the time of commission of the alleged offence, where the accused person is a female charged with an offence arising out of the death of her newly-born child;determining whether the accused person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from responsibility by virtue of subsection 202.13(1), if the accused person puts his or her mental capacity to form the requisite intent into issue or if the prosecutor raises the issue after a finding is made of not responsible on account of mental disorder;challenging the credibility of an accused person in any proceeding where the testimony of the accused person is inconsistent in a material particular with a protected statement that the accused person made previously; orestablishing the perjury of an accused person who is charged with perjury in respect of a statement made in any proceeding.
1991, c. 43, s. 18;
1998, c. 35, s. 92;
2005, c. 22, s. 57.
Previous VersionProvisions of Criminal Code ApplicablePowers of Review BoardReview Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.Application of paragraph 672.121(a) of Criminal CodeFor the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.
1991, c. 43, s. 18;
2005, c. 22, s. 58.
Previous VersionApplication of ss. 672.67 to 672.71 of Criminal Code to findingsSections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.
1991, c. 43, s. 18;
1998, c. 35, s. 54;
2005, c. 22, s. 58.
Previous VersionProvisions Applicable to Imprisonment and Detention[Repealed, 1998, c. 35, s. 55]Computation of TermCommencement of termSubject to subsection (3) and sections 215 to 218, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.Time countedThe only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.Special caseWhere a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.
R.S., 1985, c. N-5, s. 204;
1998, c. 35, s. 57.
Service Prisons and Detention BarracksService prisons and detention barracksSuch places as are designated by the Minister for the purpose shall be service prisons and detention barracks and any hospital or other place for the reception of sick persons to which a person who is a service convict, service prisoner or service detainee has been admitted shall, in so far as relates to that person, be deemed to be part of the place to which that person has been committed.Corrective disciplinary measures for service prisons and detention barracksThe nature of and the manner of imposing corrective measures for breach of the regulations, orders and rules applicable in respect of service prisons and detention barracks by a person committed thereto as the result of a sentence passed on that person, and the terms and conditions of remission for good conduct of any part of a punishment involving incarceration, shall be as prescribed in regulations made by the Governor in Council.LimitationsCorrective measures referred to in subsection (2) shall not include whipping, paddling or any of the punishments referred to in paragraphs 139(1)(a) to (l) and shall not be so imposed as to increase the duration of any punishment involving a term of incarceration.
R.S., c. N-4, s. 177.
[Repealed, 1998, c. 35, s. 59]Suspension of Imprisonment or DetentionService tribunal may suspendWhere an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment.
R.S., 1985, c. N-5, s. 215;
1998, c. 35, s. 60.
Definition of suspending authorityIn this section and sections 217 and 218, suspending authority means any authority prescribed to be a suspending authority by the Governor in Council in regulations.Suspension of imprisonment or detentionA suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment.Committing authority may postpone committalWhere an offender has been sentenced to imprisonment or detention and suspension of the punishment has been recommended, the authority empowered to commit the offender to a penitentiary, civil prison, service prison or detention barrack, as the case may be, may postpone committal until directions of a suspending authority have been obtained.Mandatory suspension of detentionA suspending authority shall suspend a punishment of detention in the circumstances prescribed by the Governor in Council in regulations.
R.S., 1985, c. N-5, s. 216;
1998, c. 35, s. 60.
Effect of suspension before committalWhere a punishment is suspended before committal to undergo the punishment, the offender shall, if in custody, be discharged from custody and the term of the punishment shall not commence until the offender has been ordered to be committed to undergo that punishment.Effect of suspension after committalWhere a punishment is suspended after committal to undergo the punishment, the offender shall be discharged from the place in which the offender is incarcerated and the currency of the punishment shall be arrested after the day of that discharge until the offender is again ordered to be committed to undergo that punishment.
1998, c. 35, s. 60.
Review and remissionWhere a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority and if on the review it appears to the suspending authority that the conduct of the offender, since the punishment was suspended, has been such as to justify a remission of the punishment, the suspending authority shall remit it.Automatic remission of punishmentsA punishment, except a punishment referred to in subsection (3), that has been suspended shall be deemed to be wholly remitted on the expiration of a period, commencing on the day the suspension was ordered, equal to the term of the punishment less any time during which the offender has been incarcerated following pronouncement of the sentence, unless the punishment has been put into execution prior to the expiration of that period.Automatic remission of detentionA punishment of detention that has been suspended is deemed to be wholly remitted on the expiration of one year commencing on the day the suspension was ordered, unless the punishment has been put into execution prior to the expiration of that period.
R.S., 1985, c. N-5, s. 217;
1998, c. 35, s. 61.
Committal after suspensionA suspending authority may, at any time while a punishment is suspended, direct the authority empowered to do so to commit the offender and, after the date of the committal order, that punishment ceases to be suspended.Term where suspended punishment put into executionWhere a punishment that has been suspended under subsection 215(1) is put into execution, the term of the punishment shall be deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.
R.S., c. N-4, s. 186.
Committal to Imprisonment or DetentionCommitting authorityThe Minister may prescribe or appoint authorities for the purposes of this section and section 220 and, in this section and section 220, an authority prescribed or appointed under this subsection is referred to as a “committing authority”.Warrants for committalA committal order, in such form as is prescribed in regulations, made by a committing authority is a sufficient warrant for the committal of a service convict, service prisoner or service detainee to any lawful place of confinement.Authority for transferA committing authority may, by warrant, order that a service convict, service prisoner or service detainee be transferred, from the place to which that convict, prisoner or detainee has been committed to undergo punishment, to any other place in which that punishment may lawfully be put into execution.Custody pending delivery on committal and during transferA service convict, service prisoner or service detainee, until delivered to the place where that convict, prisoner or detainee is to undergo punishment or while being transferred from one such place to another such place, may be held in any place, either in service custody or in civil custody, or at one time in service custody and at another time in civil custody, as occasion may require, and may be transferred from place to place by any mode of conveyance, under such restraint as is necessary for the safe conduct of that convict, prisoner or detainee.
R.S., c. N-4, s. 187.
Committal of service convictsA service convict whose punishment of imprisonment for life or for two years or more is to be put into execution shall as soon as practicable be committed to a penitentiary to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service convict be committed to a service prison to undergo the punishment or any part of the punishment.Committal when unexpired term less than two yearsWhere a committing authority orders the committal to a penitentiary of a service convict, part of whose punishment has been undergone in a service prison, the service convict may be so committed notwithstanding that the unexpired portion of the term of that punishment is less than two years.Committal of service prisonersA service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon as practicable be committed to a civil prison to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punishment or part thereof.Committal of service detaineesA service detainee whose punishment of detention is to be put into execution shall as soon as practicable be committed to a detention barrack to undergo the punishment.
R.S., 1985, c. N-5, s. 220;
1998, c. 35, s. 62.
Temporary Removal from IncarcerationAuthority for temporary removalWhere the exigencies of the service so require, a service convict, service prisoner or service detainee may, by an order made by a committing authority referred to in section 219 or 220, be removed temporarily from the place to which he has been committed for such period as may be specified in that order but, until returned to that place, any person removed pursuant to this section shall be retained in service custody or civil custody, as occasion may require, and no further committal order is necessary on the return of the person to that place.
R.S., c. N-4, s. 188.
Rules Applicable to Service Convicts and Service PrisonersRules of penitentiaries and civil prisons to applyA service convict, while undergoing punishment in a penitentiary, or a service prisoner, while undergoing punishment in a civil prison, shall be dealt with in the same manner as other prisoners in the place where that convict or prisoner is undergoing punishment, and all rules applicable in respect of a person sentenced by a civil court to imprisonment in a penitentiary or civil prison, as the case may be, in so far as circumstances permit, apply accordingly.Jurisdiction and discretion of Parole Board of CanadaWhere the punishment of a service convict undergoing punishment in a penitentiary or a service prisoner undergoing punishment in a civil prison is not suspended, mitigated, commuted or remitted under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant or revoke the parole of that convict or prisoner.
R.S., 1985, c. N-5, s. 222;
1992, c. 20, s. 215;
1998, c. 35, s. 63;
2012, c. 1, s. 160.
Previous VersionValidity of DocumentsLegalization and rectificationThe custody of a service convict, service prisoner or service detainee is not illegal by reason only of informality or error in or in respect of a document containing a warrant, order or direction issued in pursuance of this Act, or by reason only that the document deviates from the prescribed form, and any such document may be amended appropriately at any time by the authority that issued it in the first instance or by any other authority empowered to issue documents of the same nature.
R.S., c. N-4, s. 190.
Mental Disorder during Imprisonment or DetentionPersons in penitentiaries or civil prisonsA service convict or service prisoner who, having been released from the Canadian Forces, is suffering from a mental disorder while undergoing punishment in a penitentiary or civil prison shall be treated in the same manner as if the convict or prisoner were a person undergoing a term of imprisonment in the penitentiary or civil prison by virtue of the sentence of a civil court.
R.S., 1985, c. N-5, s. 224;
1991, c. 43, s. 20.
[Repealed, 1991, c. 43, s. 20]Transfer of OffendersTransfer of offendersA person who has been found guilty of an offence by a civil court in Canada or by a civil or military tribunal of any country other than Canada and sentenced to a term of incarceration may, with the approval of the Chief of the Defence Staff or an officer designated by the Chief of the Defence Staff, be transferred to the custody of the appropriate civil or military authorities of Canada for incarceration under this Act.Imprisonment or detention of offenders transferredA person transferred under subsection (1) may, in lieu of the incarceration to which that person was sentenced, be imprisoned or detained for the term or the remainder of the term of incarceration to which he was sentenced as though that person had been sentenced to that term by a service tribunal, and the provisions of this Division are applicable in respect of every person so transferred as though the person had been so sentenced.RestrictionA person who has been found guilty of an offence by a civil court in Canada shall not,if sentenced by the civil court to a term of less than two years, be transferred under subsection (1) without the consent of the attorney general of the province in which that person is incarcerated; orif sentenced by the civil court to imprisonment for life or a term of two years or more, be transferred under subsection (1) without the consent of the Attorney General of Canada.
R.S., 1985, c. N-5, s. 226;
1998, c. 35, ss. 64, 92.
Sex Offender InformationInterpretationDefinitionsThe following definitions apply in this Division.crime of a sexual naturecrime de nature sexuellecrime of a sexual nature means a crime referred to in subsection 3(2) of the Sex Offender Information Registration Act.databasebanque de donnéesdatabase has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act.designated offenceinfraction désignéedesignated offence meansan offence within the meaning of paragraph (a), (c), (c.1) or (d) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;an offence within the meaning of paragraph (b) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;an attempt or conspiracy to commit an offence referred to in paragraph (a); oran attempt or conspiracy to commit an offence referred to in paragraph (b).finding of not responsible on account of mental disorderverdict de non-responsabilité pour cause de troubles mentauxfinding of not responsible on account of mental disorder includes a verdict of not criminally responsible on account of mental disorder within the meaning of subsection 672.1(1) of the Criminal Code.officer, or non-commissioned member, of the primary reserveofficier ou militaire du rang de la première réserveofficer, or non-commissioned member, of the primary reserve means an officer, or non-commissioned member, of the reserve forcewho is required, whether on active service or not, to perform military or any other form of duty or training;whose primary duty is not the supervision, administration and training of cadet organizations referred to in section 46; andwho is required to undergo annual training.pardonpardonpardon means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code that has not been revoked. prescribed formformulaire réglementaireprescribed form means a form prescribed in the regulations made by the Governor in Council.record suspensionsuspension du casierrecord suspension means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect.registration centrebureau d’inscriptionregistration centre has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act.Review Boardcommission d’examenReview Board means the Review Board established or designated for a province under subsection 672.38(1) of the Criminal Code.
R.S., 1985, c. N-5, s. 227;
1998, c. 35, s. 65;
2007, c. 5, s. 4;
2012, c. 1, s. 153.
Previous VersionOrder to Comply with the Sex Offender Information Registration ActOrderWhen a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or finds the person not responsible on account of mental disorder for such an offence, it shall make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02.Order — if intent establishedWhen a court martial imposes a sentence on a person for an offence referred to in paragraph (b) or (d) of the definition designated offence in section 227, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a) or (c) of that definition.Order — if previous offence establishedWhen a court martial imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or finds the person not responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes thatthe person was, before or after the coming into force of this paragraph, previously convicted of, or found not responsible on account of mental disorder for, an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code;the person was not served with a notice under section 227.08 of this Act or section 490.021 or 490.02903 of the Criminal Code in connection with that offence; andno order was made under subsection (1) or under subsection 490.012(1) of the Criminal Code in connection with that offence.Failure to make orderIf the court martial does not consider the matter under subsection (1) or (3) at that time,the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; andfor greater certainty, the person continues to be liable to be dealt with under the Code of Service Discipline for that purpose.InterpretationFor the purpose of paragraph (3)(a), a previous conviction includes a conviction for an offencefor which a person is given an adult sentence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; orthat is made in ordinary court within the meaning of subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.[Repealed, 2010, c. 17, s. 47]
2007, c. 5, s. 4;
2010, c. 17, s. 47.
Previous VersionDate order beginsAn order made under section 227.01 begins on the day on which it is made.Duration of orderAn order made under subsection 227.01(1) or (2)ends 10 years after it was made if the maximum term of imprisonment for the offence in connection with which it was made is five years or less;ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; andapplies for life if the maximum term of imprisonment for the offence is life.Duration of orderAn order made under subsection 227.01(1) applies for life if the person is convicted of, or found not responsible on account of mental disorder for, more than one offence referred to in paragraph (a) or (c) of the definition designated offence in section 227.Duration of orderAn order made under subsection 227.01(1) or (2) applies for life if the person is, or was at any time, subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act.Duration of orderAn order made under subsection 227.01(1) or (2) applies for life if the person is, or was at any time, subject to an order made previously under section 227.01 of this Act or section 490.012 of the Criminal Code.Duration of orderAn order made under subsection 227.01(3) applies for life.
2007, c. 5, s. 4;
2010, c. 17, s. 48.
Previous VersionApplication for termination orderA person who is subject to an order may apply for a termination orderif five years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(a);if 10 years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(b); orif 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(c) or subsection 227.02(2.1), (3) or (5).Multiple ordersA person who is subject to more than one order made under section 227.01 may apply for a termination order if 20 years have elapsed since the most recent order was made.Pardon or record suspensionDespite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.Scope of applicationThe application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.Re-applicationA person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.JurisdictionThe application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.015 of the Criminal Code.Court martialOn receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
2007, c. 5, s. 4;
2008, c. 29, s. 20;
2010, c. 17, s. 49;
2012, c. 1, s. 154.
Previous VersionTermination orderThe court martial shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.Reasons for decisionThe court martial shall give reasons for the decision.Notice to Provost MarshalIf the court martial makes a termination order, it shall cause the Provost Marshal to be notified of the decision.
2007, c. 5, s. 4;
2010, c. 17, s. 50.
Previous VersionRequirements relating to noticeWhen a court martial makes an order under section 227.01, it shall causethe order to be read by or to the person who is subject to it;a copy of the order to be given to that person;that person to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, section 119.1 of this Act and sections 490.031 and 490.0311 of the Criminal Code; anda copy of the order to be sent tothe Review Board that is responsible for making a disposition with respect to that person, if applicable,the person in charge of the place in which the person who is subject to the order is to serve the custodial portion of a sentence or is to be detained in custody as part of a disposition under Division 7 of this Part, if applicable, andthe Provost Marshal.Notice on disposition by Review BoardA Review Board shall cause a copy of the order to be given to the person who is subject to the order when it directs,in the exercise of the powers and performance of the duties assigned to it under paragraph 672.54(a) of the Criminal Code, that the person be discharged absolutely; orin the exercise of the powers and performance of the duties assigned to it under paragraph 672.54(b) of the Criminal Code, that the person be discharged subject to conditions, unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.Notice before releaseThe person in charge of the place in which the person who is subject to the order is serving the custodial portion of a sentence, or is detained in custody, before their release or discharge shall give them a copy of the order not earlier than 10 days before their release or discharge.
2007, c. 5, s. 4.
Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before September 12, 2008Obligation to complyA person who is served with a notice in the prescribed form shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.09 of this Act unless an exemption order is made under subsection 227.1(4) of this Act or subsection 490.023(2) of the Criminal Code.
2007, c. 5, s. 4.
Persons who may be servedThe Provost Marshal may serve a person with a notice if, on the day on which this section comes into force, they are subject to a sentence for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or have not been discharged absolutely or unconditionally released from custody under Division 7 of this Part in connection with such an offence.ExceptionA notice shall not be served on a person ifthey may be served with a notice under section 490.021 of the Criminal Code;they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code for, every offence in connection with which the notice may be served on them; oran application has been made for an order under subsection 227.01(3) of this Act or subsection 490.012(3) of the Criminal Code in relation to any offence in connection with which the notice may be served on them.
2007, c. 5, s. 4.
Period for and method of serviceThe notice shall be personally served within one year after the day on which section 227.07 comes into force.ExceptionIf a person is unlawfully at large or is in breach of any terms of their sentence or their discharge or release under Division 7 of this Part, or of any conditions set under this Part, that relate to residence, the notice may be served by registered mail at their last known address.Proof of serviceAn affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out thatthe person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;the notice was personally served on, or mailed to, the person to whom it was directed on a named day; andthe person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.Requirements relating to noticeThe person who served the notice shall send a copy of the affidavit and the notice to the Provost Marshal without delay.
2007, c. 5, s. 4.
Date obligation beginsThe obligation under section 227.06 beginseither one year after the day on which the person is served with the notice, or when an exemption order is refused under subsection 227.1(4) of this Act or subsection 490.023(2) of the Criminal Code, whichever is later; orwhen an exemption order is quashed.Date obligation endsThe obligation ends when an exemption order is made on an appeal from a decision made under subsection 227.1(4) of this Act or subsection 490.023(2) of the Criminal Code.Duration of obligationIf subsection (2) does not apply earlier, the obligationends 10 years after the person was sentenced, or found not responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is five years or less;ends 20 years after the person was sentenced, or found not responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is 10 or 14 years;applies for life if the maximum term of imprisonment for the offence listed in the notice is life; orapplies for life if, at any time, the person was convicted of, or found not responsible on account of mental disorder for, more than one offence that is referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code and if more than one of those offences is listed in the notice.
2007, c. 5, s. 4.
Application for exemption orderA person who is not subject to an order under section 227.01 of this Act or section 490.012 of the Criminal Code may apply for an order exempting them from the obligation within one year after they are served with a notice under section 227.08.JurisdictionThe application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.023 of the Criminal Code.Court martialOn receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.Exemption orderThe court martial shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.Reasons for decisionThe court martial shall give reasons for the decision.Removal of information from databaseIf the court martial makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the notice.
2007, c. 5, s. 4;
2008, c. 29, s. 21;
2010, c. 17, s. 52.
Previous VersionRequirements relating to noticeIf the court martial refuses to make an exemption order or if the Court Martial Appeal Court dismisses an appeal from such a decision or quashes an exemption order, it shall cause the Provost Marshal to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, section 119.1 of this Act and sections 490.031 and 490.0311 of the Criminal Code.
2007, c. 5, s. 4.
Application for termination orderA person who is subject to an obligation under section 227.06 may apply for a termination order unless they are also subject toan obligation under section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act that began later; oran order under section 227.01 of this Act or section 490.012 of the Criminal Code that began later.Time for applicationA person may apply for a termination order if the following period has elapsed since they were sentenced, or found not responsible on account of mental disorder, for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227:five years if the maximum term of imprisonment for the offence is five years or less;10 years if the maximum term of imprisonment for the offence is 10 or 14 years; or20 years if the maximum term of imprisonment for the offence is life.More than one offenceIf more than one offence is listed in the notice served under section 227.08, the person may apply for a termination order if 20 years have elapsed since they were sentenced, or found not responsible on account of mental disorder, for the most recent offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code.Pardon or record suspensionDespite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.Re-applicationA person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.JurisdictionThe application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.026 of the Criminal Code.Court martialOn receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
2007, c. 5, s. 4;
2008, c. 29, s. 22;
2010, c. 17, s. 53;
2012, c. 1, s. 155.
Previous VersionTermination orderThe court martial shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.Reasons for decisionThe court martial shall give reasons for the decision.Requirements relating to noticeIf the court martial makes a termination order, it shall cause the Provost Marshal to be notified of the decision.
2007, c. 5, s. 4;
2010, c. 17, s. 54.
Previous VersionDeemed applicationIf a person is eligible to apply for both an exemption order under section 227.1 and a termination order under section 227.12 within one year after they are served with a notice under section 227.08, an application within that period for one order is deemed to be an application for both.
2007, c. 5, s. 4.
Suspension of Time Limits, Proceedings and ObligationsDetermination — inability to act for operational reasonsThe Chief of the Defence Staff may determine that a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, for operational reasons, unable toapply for an exemption order under section 227.1 of this Act or section 490.023 of the Criminal Code within the required period;appeal the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1) of this Act — or appeal a decision made under subsection 490.012(2), 490.016(1), 490.023(2), 490.027(1), 490.02905(2), 490.02909(1) or 490.02913(1) of the Criminal Code — within the required period;participate in a proceeding relating to an exemption order referred to in paragraph (a) or in an appeal proceeding referred to in paragraph (b); orcomply with section 4, 4.1, 4.3 or 6 of the Sex Offender Information Registration Act within the required period.Effects of determinationIf the Chief of the Defence Staff makes a determination, the following rules apply:in the case of a determination under paragraph (1)(a), the running of the period during which the person may apply for an exemption order is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply;in the case of a determination under paragraph (1)(b), the running of the period during which the person may appeal the legality of a decision, or a decision, is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply;in the case of a determination under paragraph (1)(c),any proceeding relating to an exemption order is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply, oran application may be made to appeal the legality of a decision, or a decision, after the day on which the operational reasons first apply, but any appeal proceeding is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply; andin the case of a determination under paragraph (1)(d), the person’s obligation to comply with the relevant section of the Sex Offender Information Registration Act is suspended from the day on which the operational reasons first apply until 15 days after the day on which they cease to apply.Factors for considerationThe Chief of the Defence Staff may make a determination only if he or she is of the opinion that the operational reasons clearly outweigh in importance the public interest in applying the provisions of the Act that, but for the determination, would apply in the circumstances.Notice to MinisterThe Chief of the Defence Staff shall notify the Minister before making a determination.Review of operational reasonsEvery 15 days after a determination is made, the Chief of the Defence Staff shall consider whether the operational reasons cease to apply.NoticeThe Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.NoticeThe Chief of the Defence Staff shall notify the Provost Marshal without delay of the determination, the date on which the operational reasons first apply and the date on which they cease to apply, and the Provost Marshal shall notify the person without delay.NoticeThe Provost Marshal shall notify the following persons without delay of a determination made under paragraph (1)(b) or (c), the effect of the determination, the date on which the suspension of the time limit or proceeding first applies and the date on which it ceases to apply:the Minister or counsel instructed by the Minister if the decision in relation to which an appeal may be brought was made under this Act, or the Minister or counsel instructed by the Minister and the Court Martial Administrator if the proceeding was commenced under this Act; orthe attorney general of a province or the minister of justice of a territory if the decision in relation to which an appeal may be brought was made, or the proceeding was commenced, in that jurisdiction under the Criminal Code.
2007, c. 5, s. 4;
2010, c. 17, s. 55.
Previous VersionDetermination — information relating to an operationThe Chief of the Defence Staff may determine that the communication, under section 6 of the Sex Offender Information Registration Act, of information that relates to an operation could jeopardize national security, international relations or the security of an operation that is within a class of operations designated by a regulation made under paragraph 227.2(b).NoticeThe Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.NoticeThe Chief of the Defence Staff shall notify the Provost Marshal without delay of the determination, and the Provost Marshal shall notify without delay any participant in the operation who is required to comply with section 6 of the Sex Offender Information Registration Act.Effect of determinationA participant in the operation is exempted from the requirement under section 6 of the Sex Offender Information Registration Act to provide the information relating to the operation.
2007, c. 5, s. 4.
Statutory Instruments ActThe Statutory Instruments Act does not apply to a determination made by the Chief of the Defence Staff under subsection 227.15(1) or 227.16(1).
2007, c. 5, s. 4.
Annual ReportThe Chief of the Defence Staff shall, within 30 days after the end of each year, submit a report to the Minister on the operation of sections 227.15 and 227.16 for that year that includesthe number of determinations made under each of paragraphs 227.15(a) to (d) and the duration of the suspension resulting from each determination; andthe number of determinations made under subsection 227.16(1) and the number of persons exempted under subsection 227.16(4) as a result of each determination.Tabling in ParliamentThe Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.
2007, c. 5, s. 4.
Disclosure of InformationDisclosureAt the request of the Provost Marshal, the Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall disclose information that is registered in the database, or the fact that information is registered in the database, to the Provost Marshal if the disclosure is necessary to enable the Provost Marshal to determinewhether a person may be served with a notice under section 227.08;for the purpose of a proceeding under section 227.01 or subsection 227.04(1), 227.1(4) or 227.13(1) or for the purpose of an appeal respecting the legality of a decision made under any of those provisions, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, or was at any time, required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act;for the purpose of enabling compliance with the Sex Offender Information Registration Act, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act; orwhether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, may be the subject of a determination under subsection 227.15(1) or 227.16(1).Disclosure by Provost MarshalThe Provost Marshal shall disclose the informationto a prosecutor if the disclosure is necessary for the purpose of a proceeding for an order under section 227.01, a termination order under subsection 227.04(1) or 227.13(1) or an exemption order under subsection 227.1(4);to the Minister or counsel instructed by the Minister if the disclosure is necessary for the purpose of an appeal respecting the legality of a decision made in a proceeding referred to in paragraph (a);to a person’s commanding officer if the disclosure is necessary to enable the person to comply with the Sex Offender Information Registration Act; orto the Chief of the Defence Staff if the disclosure is necessary for the purpose of a determination under subsection 227.15(1) or 227.16(1).Disclosure in proceedingsThe prosecutor or the Minister or counsel instructed by the Minister may, if the information is relevant to the proceeding or appeal referred to in paragraph (2)(a) or (b), disclose it to the presiding judge, court or court martial.
2007, c. 5, s. 4;
2010, c. 17, s. 56.
Previous VersionDisclosureIf a person, in connection with a proceeding or an appeal other than one referred to in paragraph 227.18(2)(a) or (b), discloses the fact that information relating to them is registered in the database, the Provost Marshal shall request that the Commissioner of the Royal Canadian Mounted Police disclose all of the information relating to the person that is registered in the database. The Commissioner or a person authorized by the Commissioner shall disclose the information to the Provost Marshal without delay.Disclosure by Provost MarshalThe Provost Marshal shall disclose the informationto the officer who has jurisdiction to try the person and to a person who provides legal advice to the officer with respect to the proceeding, in the case of a summary trial; orto the prosecutor or to the Minister or counsel instructed by the Minister in any other case.Disclosure in proceedingsThe officer who has jurisdiction to try the person may, if the officer is unable to preside over the summary trial, disclose the information to another officer who has jurisdiction to try the person and to a person who provides legal advice to that officer with respect to the summary trial.Disclosure in proceedingsThe officer who presides over the summary trial may disclose the information to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the summary trial, if the information is relevant to the review.Disclosure in proceedingsThe prosecutor or the Minister or counsel instructed by the Minister may disclose the information to the presiding judge, court or court martial in the proceeding or appeal or in any subsequent appeal, or to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the proceeding or appeal, if the information is relevant to the proceeding, appeal or review.Disclosure in proceedingsA review authority may disclose the information to another review authority and to a person who provides legal advice to the other review authority with respect to a review by that review authority of a finding of guilty made or punishment imposed in a proceeding or appeal referred to in subsection (1) or in any subsequent appeal, if the information is relevant to the review.
2007, c. 5, s. 4;
2010, c. 17, s. 57.
Previous VersionAuthorizations, Designations and RegulationsRegulations by Governor in CouncilThe Governor in Council may make regulationsrespecting the means by which designated classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve are required to report under section 4, 4.1 or 4.3, or to provide notification under section 6, of the Sex Offender Information Registration Act to registration centres designated under paragraph (e);designating classes of operations in respect of which a determination may be made under subsection 227.16(1);authorizing persons or classes of persons in or outside Canada to collect information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve;authorizing persons or classes of persons in or outside Canada to register information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve; anddesignating places or classes of places in or outside Canada as registration centres for the purposes of the Sex Offender Information Registration Act and the area, or classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve, served by each registration centre.
2007, c. 5, s. 4.
AuthorizationThe Chief of the Defence Staff, the Provost Marshal, the Chief Military Judge or a commanding officer may authorize a person to communicate or disclose information, or give notice, under this Division on their behalf.
2007, c. 5, s. 4.
AppealsGeneral ProvisionsDefinition of legality and illegalFor the purposes of this Division, the expressions legality and illegal shall be deemed to relate either to questions of law alone or to questions of mixed law and fact.
R.S., 1985, c. N-5, s. 228;
1998, c. 35, s. 92.
[Repealed, 1998, c. 35, s. 67]Right to AppealAppeal by person triedEvery person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;the decision to make an order under subsection 745.51(1) of the Criminal Code;the legality of any finding of guilty;the legality of the whole or any part of the sentence;the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;the legality of a disposition made under section 201, 202 or 202.16;the legality of a decision made under any of subsections 196.14(1) to (3); orthe legality of a decision made under subsection 227.01(2).
R.S., 1985, c. N-5, s. 230;
1991, c. 43, s. 21;
2000, c. 10, s. 2;
2007, c. 5, s. 5, c. 22, s. 45;
2010, c. 17, s. 58;
2011, c. 5, s. 8.
Previous VersionAppeal by MinisterThe Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;the decision not to make an order under subsection 745.51(1) of the Criminal Code;the legality of any finding of not guilty;the legality of the whole or any part of the sentence;the legality of a decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge;the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;the legality of a disposition made under section 201, 202 or 202.16;the legality of an order for a stay of proceedings made under subsection 202.121(7);the legality of a decision made under any of subsections 196.14(1) to (3); orthe legality of a decision made under subsection 227.01(2).
1991, c. 43, s. 21;
2000, c. 10, s. 3;
2005, c. 22, s. 59;
2007, c. 5, s. 6, c. 22, s. 46;
2010, c. 17, s. 59;
2011, c. 5, s. 9.
Previous VersionAppeal from orderSubject to subsection 232(3), a person who applied for an exemption order under section 227.1 or a termination order under section 227.03 or 227.12 and the Minister or counsel instructed by the Minister have the right to appeal to the Court Martial Appeal Court in respect of the legality of the decision made by the court martial.
2007, c. 5, s. 7.
Other rights preservedThe right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that the person has under the law of Canada.
R.S., c. N-4, s. 198.
Entry of AppealsFormAn appeal or application for leave to appeal under this Division shall be stated on a form to be known as a Notice of Appeal, which shall contain particulars of the grounds on which the appeal is founded and shall be signed by the appellant.ValidityA Notice of Appeal is not invalid by reason only of informality or the fact that it deviates from the prescribed form.Limitation periodNo appeal or application for leave to appeal under this Division shall be entertained unless the Notice of Appeal is delivered within thirty days after the date on which the court martial terminated its proceedings to the Registry of the Court Martial Appeal Court or, in such circumstances as may be prescribed by the Governor in Council in regulations, to a person prescribed in those regulations.ExtensionThe Court Martial Appeal Court or a judge thereof may at any time extend the time within which a Notice of Appeal must be delivered.Forwarding statementWhere a Notice of Appeal is delivered pursuant to subsection (3) to a person prescribed by the Governor in Council in regulations, the person shall forward the Notice of Appeal to the Registry of the Court Martial Appeal Court.
R.S., 1985, c. N-5, s. 232;
1991, c. 43, s. 22;
1998, c. 35, s. 92;
2007, c. 5, s. 8(F).
Previous VersionAppeals from DispositionsAutomatic suspension of certain dispositionsSubject to subsection (2), where the disposition appealed from is a disposition made under section 202 or paragraph 202.16(1)(a), the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.Discretionary powers respecting suspension of dispositionsA judge of the Court Martial Appeal Court may, on application of any party who gives notice to each of the other parties within the time and in the manner prescribed under subsection 244(1), where the judge is satisfied that the mental condition of the accused justifies the taking of such action,by order, direct that the application of a disposition made under section 202 or paragraph 202.16(1)(a) not be suspended pending the determination of the appeal;by order, direct that the application of a disposition appealed from that was made under section 201 or paragraph 202.16(1)(b) or (c) be suspended pending determination of the appeal;where the application of a disposition is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (b), make such other disposition, other than a disposition under section 202 or paragraph 202.16(1)(a), in respect of the accused as is applicable and appropriate in the circumstances pending the determination of the appeal; andgive such directions as the judge thinks necessary for expediting the appeal.Effect of suspension of dispositionWhere the application of a disposition appealed from is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (2)(b),in the case where no disposition was in force in respect of the accused immediately before the coming into force of the disposition appealed from, any order for the interim release or detention of the accused that is in force immediately prior to the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c), pending the determination of the appeal; andin any other case, the disposition in force immediately before the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c).
R.S., 1985, c. N-5, s. 233;
1991, c. 43, s. 22.
Court Martial Appeal Court of CanadaCourt establishedThere is hereby established a Court Martial Appeal Court of Canada, which shall hear and determine all appeals referred to it under this Division.JudgesThe judges of the Court Martial Appeal Court arenot fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; andany additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council.Deputy judges of the CourtSubject to subsection (2.2), any former judge of the Court Martial Appeal Court may, at the request of the Chief Justice of that Court made with the approval of the Governor in Council, act as a judge of the Court and while so acting has all the powers of a judge of the Court and shall be referred to as a deputy judge of the Court.Approval of Governor in CouncilThe Governor in Council may approve the making of requests under subsection (2.1) in general terms or for particular periods or purposes, and may limit the number of persons who may act under that subsection.SalaryA person who acts as a judge under subsection (2.1) shall be paid a salary for the period he or she acts at the rate fixed by the
Judges Act for a judge of the Federal Court of Appeal or the Federal Court, other than a Chief Justice, less any amount otherwise payable to him or her under that Act in respect of that period, and shall also be paid the travel allowances that a judge is entitled to be paid under the
Judges Act.Giving of judgment after judge ceases to hold officeIf a judge of the Court Martial Appeal Court resigns his or her office or is appointed to another court or otherwise ceases to hold office, he or she may, at the request of the Chief Justice of the Court Martial Appeal Court, at any time within eight weeks after that event give judgment in any cause, action or matter previously tried by or heard before him or her as if he or she had continued in office.Chief JusticeThe Governor in Council shall designate one of the judges of the Court Martial Appeal Court to be the Chief Justice thereof, who shall preside, when present, at any sittings of the Court and shall, subject to subsection (4), appoint another judge to preside at any sittings of the Court at which the Chief Justice is not present.Absence or incapacity of Chief JusticeWhere the office of Chief Justice is vacant, or the Chief Justice is absent from Canada or is unable or unwilling to act, his powers shall be exercised and his duties performed by the senior judge who is in Canada and is able and willing to Act.
R.S., 1985, c. N-5, s. 234;
1998, c. 35, s. 92;
2002, c. 8, s. 153.
Previous VersionSittings and hearingsThe Court Martial Appeal Court may sit and hear appeals at any place or places, and the Chief Justice of the Court shall arrange for sittings and hearings as may be required.Hearing of appeals and other mattersEvery appeal shall be heard by three judges of the Court Martial Appeal Court sitting together, the decision of the majority of whom shall be the decision of the Court, and any other matter before the Court shall be disposed of by the Chief Justice or by such other judge or judges of the Court as the Chief Justice may designate for that purpose.Notification of dissentWhere an appeal has been wholly or partially dismissed by the Court Martial Appeal Court and there has been dissent in the Court, the appellant shall forthwith be informed of that dissent.
R.S., 1985, c. N-5, s. 235;
R.S., 1985, c. 41 (1st Supp.), s. 13.
Superior court of recordThe Court Martial Appeal Court is a superior court of record.EvidenceThe Court Martial Appeal Court may hear evidence including new evidence, as it may deem expedient and the Court may sit in camera or in public.StaffThe officers, clerks and employees appointed to the Courts Administration Service shall perform the duties of their respective offices in relation to the Court Martial Appeal Court.Authorization to execute Chief Justice’s functionsThe Chief Justice of the Court Martial Appeal Court may authorize any other judges of the Court to exercise or perform any of the powers or functions of the Chief Justice under this section and sections 234 and 235.
R.S., 1985, c. N-5, s. 236;
2002, c. 8, s. 154.
Previous VersionExpensesA judge of the Court Martial Appeal Court is entitled to be paid travel allowances under the Judges Act as for attendances as judge of the Federal Court or the superior court to which the judge so entitled belongs.
R.S., c. N-4, s. 201;
R.S., c. 10(2nd Supp.), s. 64;
1984, c. 40, s. 47(F).
Disposition of Appeals by Court Martial Appeal Court of CanadaPowers on appeal against finding of guiltyOn the hearing of an appeal respecting the legality of a finding of guilty on any charge, the Court Martial Appeal Court, if it allows the appeal, may set aside the finding andenter a finding of not guilty in respect of the charge; ordirect a new trial by court martial on the charge.Effect of setting aside finding of guiltyWhere the Court Martial Appeal Court has set aside a finding of guilty and no other finding of guilty remains, the whole of the sentence ceases to have force and effect.Sentence where findings partly set asideWhere the Court Martial Appeal Court has set aside a finding of guilty but another finding of guilty remains, the Court may, except where it allows an appeal under section 240.1,affirm the sentence imposed by the court martial if the court martial could legally have imposed that sentence on the finding of guilty that remains; orsubstitute for the sentence imposed by the court martial a sentence that is warranted in law.
R.S., 1985, c. N-5, s. 238;
1991, c. 43, s. 23;
1998, c. 35, s. 68;
2008, c. 29, s. 23.
Previous VersionSubstitution of findingWhere an appellant has been found guilty of an offence and the court martial could, on the charge, have found the appellant guilty under section 133, 134 or 136 of some other offence or could have found the appellant guilty of some other offence on any alternative charge that was laid and, on the actual finding, it appears to the Court Martial Appeal Court that the facts proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of guilty made by the court martial a finding of guilty of that other offence.Sentence on substituted findingOn the substitution of a finding of guilty under subsection (1), the Court Martial Appeal Court may, except where it allows an appeal under section 240.1,affirm the sentence imposed by the court martial if the court martial could legally have imposed that sentence on the substituted finding of guilty; orsubstitute for the sentence imposed by the court martial a sentence that is warranted in law.[Repealed, 1991, c. 43, s. 24]
R.S., 1985, c. N-5, s. 239;
1991, c. 43, s. 24;
1998, c. 35, s. 69.
Appeal against not guilty findingOn the hearing of an appeal respecting the legality of a finding of not guilty on any charge, the Court Martial Appeal Court may, where it allows the appeal, set aside the finding anddirect a new trial by court martial on that charge; orexcept if the finding is that of a General Court Martial, enter a finding of guilty with respect to the offence for which, in its opinion, the accused person should have been found guilty but for the illegality andimpose the sentence in accordance with subsections (2) and (3), orremit the matter to the court martial and direct it to impose a sentence in accordance with subsections (2) and (3).Where no other finding of guiltyWhere the Court Martial Appeal Court has entered a finding of guilty and there is no other finding of guilty, the Court or the court martial shall impose a sentence that is warranted in law.Where another finding of guiltyWhere the Court Martial Appeal Court has entered a finding of guilty and there is another finding of guilty, the Court or the court martial mayaffirm the sentence imposed by the court martial, if the court martial could legally have imposed the sentence on all of the findings; orsubstitute for the sentence imposed by the court martial a sentence that is warranted in law.
1991, c. 43, s. 25;
2008, c. 29, s. 24.
Previous VersionAppeal against decisionOn the hearing of an appeal respecting the legality of a decision referred to in paragraph 230.1(d), the Court Martial Appeal Court may, if it allows the appeal, set aside the decision and direct a new trial by court martial on the charge.
1991, c. 43, s. 25;
2008, c. 29, s. 25.
Previous VersionSubstitution of new sentence where illegal sentence set asideOn the hearing of an appeal respecting the legality of a sentence imposed by a court martial, the Court Martial Appeal Court, if it allows the appeal, may substitute for the sentence imposed by the court martial a sentence that is warranted in law.
R.S., 1985, c. N-5, s. 240;
1991, c. 43, s. 26;
1998, c. 35, s. 70.
Appeal against severity of sentenceOn the hearing of an appeal respecting the severity of a sentence, the Court Martial Appeal Court shall consider the fitness of the sentence and, if it allows the appeal, may, on such evidence as it thinks fit to require or receive, substitute for the sentence imposed by the court martial a sentence that is warranted in law.
1991, c. 43, s. 26.
Appeal against finding of unfit or not responsibleOn the hearing of an appeal against a finding of unfit to stand trial or not responsible on account of mental disorder, the Court Martial Appeal Court shall, subject to subsection (2), direct a new trial by court martial if it allows the appeal.Finding after close of case for prosecutionWhere the finding of unfit to stand trial was made after the close of the case for the prosecution, the Court may, notwithstanding that the finding is proper, allow the appeal, set aside the finding and enter a finding of not guilty on any charge if it is of the opinion that the accused should have been acquitted on the charge at the close of the case for the prosecution.
1991, c. 43, s. 26;
2008, c. 29, s. 26.
Previous VersionAppeal against dispositionOn the hearing of an appeal respecting the legality of a disposition made under section 201, 202 or 202.16, the Court Martial Appeal Court may, where it allows the appeal, set aside the disposition andmake any disposition under section 201 or 202.16 that the court martial could have made;except in the case of a disposition made by a General Court Martial, remit the matter to the court martial for a rehearing, in whole or in part, in accordance with any directions that the Court considers appropriate; ormake any other order that justice requires.
1991, c. 43, s. 26;
2008, c. 29, s. 27.
Previous VersionAppealThe Court Martial Appeal Court may allow an appeal against an order made under subsection 202.121(7) for a stay of proceedings, if the Court Martial Appeal Court is of the opinion that the order is unreasonable or cannot be supported by the evidence.EffectIf the Court Martial Appeal Court allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused person is unfit to stand trial and the disposition made in respect of the accused person.
2005, c. 22, s. 60.
Appeal against order or decisionOn the hearing of an appeal respecting the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1), the Court Martial Appeal Court, or another court hearing the appeal, may dismiss the appeal, allow it and order a new hearing, quash the order or make an order that may be made under that provision.Requirements relating to noticeIf the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.01(2), it shall cause the requirements set out in section 227.05 to be fulfilled.Requirements relating to noticeIf the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.04(1) or 227.13(1), it shall cause the Provost Marshal to be notified of the decision.Removal of information from databaseIf the Court Martial Appeal Court or other court makes an exemption order that may be made under subsection 227.1(4), it shall also make the order referred to in subsection 227.1(6).
2007, c. 5, s. 9;
2010, c. 17, s. 60.
Previous VersionSpecial power to disallow appealNotwithstanding anything in this Division, the Court Martial Appeal Court may disallow an appeal if, in the opinion of the Court, to be expressed in writing, there has been no substantial miscarriage of justice.
R.S., 1985, c. N-5, s. 241;
1998, c. 35, s. 92.
New sentenceWhere a new sentence is substituted under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the sentence imposed by the court martial ceases to have effect.
1991, c. 43, s. 27.
[Repealed, 1998, c. 35, s. 71]New trialWhere the Court Martial Appeal Court directs a new trial on a charge under section 238, 239.1, 239.2 or 240.2, the accused person shall be tried again as if no trial on that charge had been held.
1991, c. 43, s. 27.
Powers to mitigate, commute, remit and suspend new punishmentWhere a punishment included in a sentence has been dealt with pursuant to subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to mitigation, commutation, remission or suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.
R.S., 1985, c. N-5, s. 242;
1991, c. 43, s. 28.
Appeal deemed abandonedWhere a review of a disposition in respect of which an appeal is taken under paragraph 230(e) by any person is commenced under the review provisions of the Criminal Code by that person, the appeal shall be deemed to have been abandoned.
R.S., 1985, c. N-5, s. 243;
1991, c. 43, s. 29.
Rules of Appeal ProcedureChief Justice may make rulesThe Chief Justice of the Court Martial Appeal Court may, with the approval of the Governor in Council, make rules respectingthe seniority of members of the Court for the purpose of presiding at appeals;the practice and procedure to be observed at hearings;the conduct of appeals;the conduct of reviews of directions made under Division 3;the production of the minutes of the proceedings of any court martial in respect of which an appeal is taken;the production of all other documents and records relating to an appeal;the extent to which new evidence may be introduced;the circumstances in which, on the hearing of an appeal, the appellant may attend or appear before the Court;the provision for and the payment of fees of counsel for an appellant or a respondent, other than the Minister;the awarding and regulating of costs in the Court in favour of or against appellants and respondents; andthe circumstances in which an appeal may be considered to be abandoned for want of prosecution, and the summary disposition by the Court of such appeals and of appeals showing no substantial grounds.PublicationNo rule made under this section has effect until it has been published in the Canada Gazette.
R.S., 1985, c. N-5, s. 244;
1998, c. 35, s. 72.
Appeal to Supreme Court of CanadaAppeal by person triedA person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Courton any question of law on which a judge of the Court Martial Appeal Court dissents; oron any question of law, if leave to appeal is granted by the Supreme Court of Canada.Appeal by MinisterThe Minister, or counsel instructed by the Minister for that purpose, may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Courton any question of law on which a judge of the Court Martial Appeal Court dissents; oron any question of law, if leave to appeal is granted by the Supreme Court of Canada.Hearing and determination by Supreme Court of CanadaThe Supreme Court of Canada, in respect of the hearing and determination of an appeal under this section, has the same powers, duties and functions as the Court Martial Appeal Court has under this Act, and sections 238 to 242 apply with such adaptations and modifications as the circumstances require.When appeal deemed abandonedAn appeal to the Supreme Court of Canada that is not brought on for hearing by the appellant at the session of the Supreme Court of Canada during which the judgment appealed from was pronounced by the Court Martial Appeal Court, or at the next session of the Supreme Court of Canada, shall be deemed to be abandoned, unless otherwise ordered by the Supreme Court of Canada or a judge thereof.
R.S., 1985, c. N-5, s. 245;
R.S., 1985, c. 34 (3rd Supp.), s. 14;
1997, c. 18, s. 134.
[Repealed, 1998, c. 35, s. 73]Release Pending AppealRelease by court martialEvery person sentenced to a period of detention or imprisonment by a court martial has, within twenty-four hours after being so sentenced, the right to apply to that court martial or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the expiration of the time to appeal referred to in subsection 232(3) and, if there is an appeal, until the determination of the appeal.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 74.
Release by judge of the CMACEvery person sentenced to a period of detention or imprisonment by a court martial who appeals under Division 9 has the right, if the person has not applied under section 248.1, to apply to a judge of the Court Martial Appeal Court or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the determination of the appeal.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 74.
Court may direct releaseOn hearing an application to be released from detention or imprisonment, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released as provided for in sections 248.1 and 248.2 if the person establishesin the case of an application under section 248.1,that the person intends to appeal,if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,that the person will surrender himself into custody when directed to do so, andthat the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces; orin the case of an application under section 248.2,that the appeal is not frivolous,if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,that the person will surrender himself into custody when directed to do so, andthat the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 75.
Right of representative of Canadian ForcesOn the hearing of an application to be released, counsel acting on behalf of the Canadian Forces shall be permitted to make representations if counsel so wishes after representations by or on behalf of the person making the application.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 76(F).
Undertaking if application grantedIf an application for release is granted, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released on giving an undertaking toremain under military authority;surrender himself or herself into custody when directed to do so; andcomply with any other reasonable conditions that are stipulated.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 77.
Release from detention or imprisonmentWhere a person is directed to be released from detention or imprisonment pursuant to this Division, the person in whose custody that person is shall forthwith release that person on his giving the undertaking referred to in section 248.5.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 92.
Return to dutyAn officer or non-commissioned member who is released from detention or imprisonment pursuant to this Division shall be returned to duty unless the Chief of the Defence Staff, or an officer designated by the Chief of the Defence Staff, otherwise directs.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 92.
Review of conditionsThe conditions of an undertaking referred to in section 248.5 may, on application by the person who gave the undertaking or by counsel for the Canadian Forces, be reviewed by the Court Martial Appeal Court and that Court mayconfirm the conditions;vary the conditions; orsubstitute such other conditions as it sees fit.New undertakingWhere the conditions of an undertaking referred to in section 248.5 have been varied or substituted pursuant to subsection (1), the person who gave the undertaking shall forthwith be placed in custody unless the person gives an undertaking to comply with such varied or substituted conditions.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, s. 78(F).
Breach of undertakingWhere, on application by counsel for the Canadian Forces, an authority referred to in subsection (2) is satisfied, on cause being shown, that an undertaking given by a person under section 248.5 has been breached or is likely to be breached, that authority maycancel the direction that authorized the person to be released and direct that the person be detained in custody; ordirect that the person may remain at liberty on his giving a new undertaking in accordance with section 248.5.Determination of authorityThe authority to whom an application under subsection (1) may be made iswhere the undertaking was given in respect of a direction made pursuant to an application under section 248.1, a military judge; orsubject to subsection (3), where the undertaking was given in respect of a direction made pursuant to an application under section 248.2, a judge of the Court Martial Appeal Court.[Repealed, 1998, c. 35, s. 79]ExceptionIn the circumstances provided for in regulations made by the Governor in Council, the authority to whom an application under subsection (1) may be made in respect of a direction made pursuant to an application under section 248.2 is a military judge.Right to make representationsThe person referred to in subsection (1) has the right to be present at the hearing of the application referred to in that subsection and the right to make representations at that hearing.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1993, c. 34, s. 95(F);
1998, c. 35, s. 79.
RulesThe Chief Justice of the Court Martial Appeal Court, with the approval of the Governor in Council, may make rules respecting applications under sections 248.2, 248.8 and 248.81.
R.S., 1985, c. 31 (1st Supp.), s. 57.
Appeal to CMACThe following persons, namely,a person whose application to be released from detention or imprisonment pursuant to this Division is refused, anda person who is the subject of an order under section 248.81may appeal that decision or order to the Court Martial Appeal Court.IdemThe Canadian Forces may appeal any direction under this Division that a person be released from detention or imprisonment or any order under section 248.81.Grounds may be consideredWhen hearing an appeal under this section, the Court Martial Appeal Court may, in all cases where an appeal has been filed, take into consideration the grounds of appeal.Application of provisionsThe provisions of this Division apply, with such modifications as the circumstances require, to any appeal under this section.
R.S., 1985, c. 31 (1st Supp.), s. 57;
1998, c. 35, ss. 80, 92.
Surrender into custodyA person released pending appeal under this Division may surrender himself or herself into custody at any time to serve a sentence of detention or imprisonment imposed on the person.
1998, c. 35, s. 81.
ReviewReview AuthoritiesGovernor in CouncilThe review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.Application necessaryThe review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff.Chief of the Defence Staff and other military authoritiesThe review authorities in respect of findings of guilty made and punishments imposed by persons presiding at summary trials are the Chief of the Defence Staff and such other military authorities as are prescribed by the Governor in Council in regulations.When authorities may actA review authority in respect of any finding of guilty made and any punishment imposed by a person presiding at a summary trial may act on its own initiative or on application of the person found guilty made in accordance with regulations made by the Governor in Council.
R.S., 1985, c. N-5, s. 249;
1998, c. 35, s. 82.
Royal prerogativeNothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.
1998, c. 35, s. 82.
Quashing of FindingsAuthority to quashAny finding of guilty made by a service tribunal may be quashed by a review authority.Effect of complete quashingWhere no other finding of guilty remains after a finding of guilty has been quashed under subsection (1), the whole of the sentence ceases to have force and effect and the person who had been found guilty may be tried as if no previous trial had been held.Effect of partial quashingWhere another finding of guilty remains after a finding of guilty has been quashed under subsection (1) and any punishment included in the sentence is in excess of the punishment authorized in respect of any remaining finding of guilty or is, in the opinion of the review authority that made the decision to quash, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.
1998, c. 35, s. 82.
Substitution of FindingsSubstitution of illegal and unsubstantiated findingsA review authority may substitute a new finding for any finding of guilty that is made by a service tribunal and that is illegal or cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears that the service tribunal was satisfied of the facts establishing the offence specified or involved in the new finding.Substitution of finding in relation to other offenceA review authority may substitute for a finding of guilty made by a service tribunal a new finding of guilty of an offence, other than that of which the service tribunal found the offender guilty, if it appears that the facts proved the offender guilty of the other offence and the service tribunal could have found the offender guilty of the other offence on the charge under section 133, 134 or 136 or on any alternative charge that was laid.Effect on sentenceWhere a new finding has been substituted under this section for a finding made by a service tribunal and any punishment included in the sentence passed by the service tribunal is in excess of the punishment authorized in respect of the new finding or is, in the opinion of the review authority that substituted the new finding, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.
1998, c. 35, s. 82.
Substitution of PunishmentsAuthority to substitute punishmentA review authority may substitute for a sentence passed by a service tribunal in which is included an illegal punishment any new punishment or punishments that it considers appropriate.
1998, c. 35, s. 82.
Mitigation, Commutation and Remission of PunishmentsAuthority to mitigate, commute and remit punishmentsA review authority may mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal.
1998, c. 35, s. 82.
Conditions Applicable to New PunishmentsConditionsThe following conditions apply where a new punishment under this Division replaces, by way of substitution or commutation, a punishment imposed by a service tribunal:the new punishment may not be a punishment that could not legally have been imposed on the charges of which the offender was found guilty and in respect of which the findings have not been quashed or set aside by way of substitution;the new punishment may not be higher in the scale of punishments than the punishment imposed in the first instance and, if the sentence passed included a punishment of incarceration, the new punishment may not involve a period of incarceration exceeding the period of incarceration included in that sentence;where the new punishment is detention and the punishment that it replaces is imprisonment, the term of the detention after the date of alteration may in no case exceed the term of the imprisonment remaining to be served and, in any event, may not exceed ninety days; andwhere the offence of which a person has been found guilty is an offence for which the punishment of imprisonment for life is mandatory under section 73, 74, 75 or 76, for which the punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is mandatory under section 92 or to which paragraph 130(2)(a) applies, the punishment may, subject to this section, be altered to any one or more of the punishments lower in the scale of punishments than the punishment provided for in that section or any other enactment prescribing the offence.
1998, c. 35, s. 82.
Petition for New TrialRight to petition on new evidenceEvery person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.Reference to CMAC for determinationThe Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.Reference to CMAC for opinionThe Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion and the Court shall furnish its opinion accordingly.New trialIf the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.
1998, c. 35, s. 82.
Miscellaneous ProvisionsRight to be RepresentedRight to be representedA person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council.
1998, c. 35, s. 82.
Defence Counsel ServicesAppointmentThe Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Defence Counsel Services.Tenure of officeThe Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years.Re-appointmentThe Director of Defence Counsel Services is eligible to be re-appointed on the expiration of a first or subsequent term of office.
1998, c. 35, s. 82.
Duties and functionsThe Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.
1998, c. 35, s. 82.
Relationship to Judge Advocate GeneralThe Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.General instructionsThe Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services.Instructions must be publicThe Director of Defence Counsel Services shall ensure that the general instructions and guidelines are available to the public.
1998, c. 35, s. 82.
Barristers and advocates to assistThe Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.CounselThe Director of Defence Counsel Services may engage on a temporary basis the services of counsel to assist the Director of Defence Counsel Services.RemunerationThe Director of Defence Counsel Services may, subject to any applicable Treasury Board directives, establish the terms and conditions of engagement and fix the remuneration and expenses of counsel engaged under subsection (2).
1998, c. 35, s. 82.
Witnesses at Courts Martial and before CommissionersSummonses to witnessesEvery person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.Summonses to witnessesEvery person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.Production of documentsA person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue.
1998, c. 35, s. 82.
Warrant for Arrest on Non-Appearance of AccusedNon-appearance of accusedWhere an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused personfails to appear as summoned or ordered; orhaving appeared before the court martial, fails to attend before the court martial as required.
1998, c. 35, s. 82.
Effect of New PunishmentForce and effectWhere a new punishment, by reason of substitution or commutation, replaces a punishment imposed by a service tribunal, the new punishment has force and effect as if it had been imposed by the service tribunal in the first instance and the provisions of the Code of Service Discipline apply accordingly but, where the new punishment involves incarceration, the term of the new punishment shall be reckoned from the date of substitution or commutation, as the case may be.
1998, c. 35, s. 82.
Restitution of PropertyRestitution of property in case of convictionWhere a person is convicted of an offence under the Code of Service Discipline, the service tribunal shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.Restitution where no conviction, but offence committedWhere an accused person is tried for an offence but is not convicted and it appears to the service tribunal that an offence has been committed, the service tribunal may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.ExceptionsAn order shall not be made in respect ofproperty to which an innocent purchaser for value has acquired lawful title;a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; ora negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.Execution of order for restitutionAn order made under this section shall be executed by the persons by whom the process of the service tribunal is ordinarily executed.
1998, c. 35, s. 82.
Reference to RanksReference to ranksEvery reference in this Part to the rank of an officer or non-commissioned member includes a person who holds any equivalent relative rank, whether that person is attached, seconded or on loan to the Canadian Forces.
1998, c. 35, s. 82.
COMPLAINTS ABOUT OR BY MILITARY POLICEInterpretationDefinitionsThe definitions in this section apply in this Part.ChairpersonprésidentChairperson means the Chairperson of the Complaints Commission.Complaints CommissionCommissionComplaints Commission means the Military Police Complaints Commission established by subsection 250.1(1).conduct complaintplainte pour inconduiteconduct complaint means a complaint about the conduct of a member of the military police made under subsection 250.18(1).interference complaintplainte pour ingérenceinterference complaint means a complaint about interference with a military police investigation made under subsection 250.19(1).military policepolice militairemilitary police means the officers and non-commissioned members appointed under regulations for the purposes of section 156.Provost Marshal[Repealed, 2007, c. 5, s. 10]
R.S., 1985, c. N-5, s. 250;
1998, c. 35, s. 82;
2007, c. 5, s. 10.
Previous VersionMilitary Police Complaints CommissionEstablishment and OrganizationCommission establishedThere is established a commission, called the Military Police Complaints Commission, consisting of a Chairperson and not more than four other members to be appointed by the Governor in Council.Full- or part-timeEach member holds office as a full-time or a part-time member.Tenure of office and removalEach member holds office during good behaviour for a term not exceeding five years but may be removed by the Governor in Council for cause.Re-appointmentA member is eligible to be re-appointed on the expiration of a first or subsequent term of office.Duties of full-time membersFull-time members shall devote the whole of their time to the performance of their duties under this Act.Conflict of interest — part-time membersPart-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.EligibilityAn officer, a non-commissioned member or an employee of the Department is not eligible to be a member of the Complaints Commission.RemunerationThe members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.Travel and living expensesThe members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.Status of membersThe members are deemedto be employed in the public service for the purposes of the Public Service Superannuation Act;to be employees for the purposes of the Government Employees Compensation Act; andto be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.Oath of officeEvery member shall, before commencing the duties of office, take the following oath of office:I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Police Complaints Commission in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Police Complaints Commission, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)
1998, c. 35, s. 82;
2003, c. 22, ss. 224(E), 225(E);
2010, c. 12, s. 1755.
Previous VersionChairpersonChief executive officerThe Chairperson is the chief executive officer of the Complaints Commission and has supervision over and direction of its work and staff.Absence or incapacityIn the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Minister may authorize any member of the Complaints Commission to exercise the powers and perform the duties and functions of the Chairperson.DelegationThe Chairperson may delegate to a member of the Complaints Commission any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 250.17(1).
1998, c. 35, s. 82.
Head OfficeHead OfficeThe head office of the Complaints Commission shall be at the place in Canada designated by the Governor in Council.
1998, c. 35, s. 82.
StaffStaffThe employees that are necessary for the proper conduct of the work of the Complaints Commission shall be appointed in accordance with the Public Service Employment Act.ExpertsThe Complaints Commission may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Complaints Commission in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.
1998, c. 35, s. 82.
Duty to Act ExpeditiouslyDuty to act expeditiouslyThe Complaints Commission shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
1998, c. 35, s. 82.
RulesRulesThe Chairperson may make rules respectingthe manner of dealing with matters and business before the Complaints Commission, including the conduct of investigations and hearings by the Complaints Commission;the apportionment of the work of the Complaints Commission among its members and the assignment of members to review complaints; andthe performance of the duties and functions of the Complaints Commission.
1998, c. 35, s. 82.
ImmunityProtection of membersNo criminal or civil proceedings lie against any member of the Complaints Commission, or against any person acting on behalf of the Complaints Commission, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Complaints Commission.
1998, c. 35, s. 82.
Annual ReportAnnual ReportThe Chairperson shall, within three months after the end of each year, submit to the Minister a report of the Complaints Commission’s activities during that year and its recommendations, if any.Tabling in ParliamentThe Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
1998, c. 35, s. 82.
ComplaintsRight to ComplainConduct ComplaintsComplaints about military policeAny person, including any officer or non-commissioned member, may make a complaint under this Division about the conduct of a member of the military police in the performance of any of the policing duties or functions that are prescribed for the purposes of this section in regulations made by the Governor in Council.Complainant need not be affectedA conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.
1998, c. 35, s. 82.
Interference ComplaintsComplaints by military policeAny member of the military police who conducts or supervises a military police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person under this Division.Improper interferenceFor the purposes of this section, improper interference with an investigation includes intimidation and abuse of authority.
1998, c. 35, s. 82.
Time LimitTime limitNo complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time.
1998, c. 35, s. 82.
To Whom Complaint May be MadeTo whom complaint may be madeA conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police.Acknowledgement and notice of complaintThe person who receives a complaint shallif the complaint is not in writing, put it in writing;ensure that an acknowledgement of its receipt is sent as soon as practicable to the complainant; andensure that notice of the complaint is sent as soon as practicablein the case of a conduct complaint, to the Chairperson and the Provost Marshal,in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, andin the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.
1998, c. 35, s. 82.
Notice to subject of conduct complaintAs soon as practicable after receiving or being notified of a conduct complaint, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.
1998, c. 35, s. 82.
Notice to subject of interference complaintAs soon as practicable after receiving or being notified of an interference complaint, the Chairperson shall send a written notice of the substance of the complaint to the person who is the subject of the complaint unless, in the Chairperson’s opinion, to do so might adversely affect or hinder any investigation under this Act.
1998, c. 35, s. 82.
Withdrawal of ComplaintWithdrawalA complainant may withdraw a complaint by sending a written notice to the Chairperson.Notice of withdrawalThe Chairperson shall send a notice in writing of the withdrawal to the Provost Marshal and the person who was the subject of the complaint.
1998, c. 35, s. 82.
Record of ComplaintsRecord of complaintsThe Provost Marshal shall establish and maintain a record of all complaints received under this Division and, on request, make available any information contained in that record to the Complaints Commission.
1998, c. 35, s. 82.
Subdivision 2Disposal of Conduct ComplaintsProvost Marshal responsibleThe Provost Marshal is responsible for dealing with conduct complaints.Complaint about Provost MarshalIf a conduct complaint is about the conduct of the Provost Marshal, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.
1998, c. 35, s. 82.
Informal resolutionOn receiving or being notified of a conduct complaint, the Provost Marshal shall consider whether it can be disposed of informally and, with the consent of the complainant and the person who is the subject of the complaint, the Provost Marshal may attempt to resolve it informally.RestrictionSubsection (1) does not apply if the complaint is of a type prescribed in regulations made by the Governor in Council.Statements not admissibleNo answer given or statement made by the complainant or the person who is the subject of the complaint in the course of attempting to resolve a complaint informally may be used in any disciplinary, criminal, civil or administrative proceedings, other than a hearing or proceeding in respect of an allegation that, with intent to mislead, the complainant or the person who is the subject of the complaint gave an answer or made a statement knowing it to be false.Right to refuse or end informal resolutionThe Provost Marshal may direct that no attempt at informal resolution be started or that an attempt be ended if, in the opinion of the Provost Marshal,the complaint is frivolous, vexatious or made in bad faith; orthe complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament.NoticeIf a direction is made under subsection (4), the Provost Marshal shall send to the complainant and the person who is the subject of the complaint a notice in writing setting outthe direction and the reasons why it was made; andthe right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.Record of informal resolutionIf a conduct complaint is resolved informally,the details of its resolution must be set out in writing;the complainant and the person who is the subject of the complaint must give their written agreement to the resolution of the complaint; andthe Provost Marshal must notify the Chairperson of the resolution of the complaint.
1998, c. 35, s. 82.
Duty to investigateSubject to any attempts at informal resolution, the Provost Marshal shall investigate a conduct complaint as soon as practicable.Right to refuse or end investigationThe Provost Marshal may direct that no investigation of a conduct complaint be started or that an investigation be ended if, in the opinion of the Provost Marshal,the complaint is frivolous, vexatious or made in bad faith;the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; orhaving regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.NoticeIf a direction is made under subsection (2), the Provost Marshal shall send to the complainant and, if the person who is the subject of the complaint was notified of the complaint under section 250.22, to that person, a notice in writing setting outthe direction and the reasons why it was made; andthe right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.
1998, c. 35, s. 82.
Report on investigationOn the completion of an investigation into a conduct complaint, the Provost Marshal shall send to the complainant, the person who is the subject of the complaint and the Chairperson a report setting outa summary of the complaint;the findings of the investigation;a summary of any action that has been or will be taken with respect to disposition of the complaint; andthe right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the disposition of the complaint.
1998, c. 35, s. 82.
Status reportsWithin sixty days after receiving or being notified of a conduct complaint, the Provost Marshal shall, if the complaint has not been resolved or disposed of before that time, and then each thirty days afterwards until the complaint is dealt with, send to the following persons a report on the status of the complaint:the complainant;the person who is the subject of the complaint; andthe Chairperson.Six-month reportIf a conduct complaint has not been resolved or disposed of within six months, the Provost Marshal shall in each report sent after that period explain why not.ExceptionNo report shall be sent to the person who is the subject of a conduct complaint if, in the opinion of the Provost Marshal, sending the report might adversely affect or hinder any investigation under this Act.
1998, c. 35, s. 82.
Review by Complaints CommissionReference to Complaints CommissionA complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may refer the complaint in writing to the Complaints Commission for review.Information to be providedIf a complainant refers a complaint to the Complaints Commission under subsection (1),the Chairperson shall send to the Provost Marshal a copy of the complaint; andthe Provost Marshal shall provide the Chairperson with a copy of the notice sent under subsection 250.27(5) or 250.28(3), or of the report sent under section 250.29, in respect of the complaint and all information and materials relevant to the complaint.
1998, c. 35, s. 82.
Review by ChairpersonThe Chairperson shall review the complaint to which a request for review relates as soon as practicable after receiving the request.Chairperson may investigateIn conducting a review of a complaint, the Chairperson may investigate any matter relating to the complaint.ReportAt the completion of the review, the Chairperson shall send a report to the Minister, the Chief of the Defence Staff and the Provost Marshal setting out the Chairperson’s findings and recommendations with respect to the complaint.
1998, c. 35, s. 82.
Status reportsWithin sixty days after a complaint is referred to the Commission for a review, the Chairperson shall, if the review has not been completed, and then each thirty days afterwards until it is completed, send a report on the status of the complaint to the complainant and the person who is the subject of the complaint.Six-month reportIf the review has not been completed within six months, the Chairperson shall in each report sent after that period explain why not.ExceptionNo report shall be sent to the person who is the subject of a conduct complaint if, in the Chairperson’s opinion, sending the report might adversely affect or hinder any investigation under this Act.
1998, c. 35, s. 82.
Disposal of Interference ComplaintsResponsibilityThe Chairperson is responsible for dealing with interference complaints.Investigation may be by Provost MarshalIf the Chairperson considers it appropriate to do so, the Chairperson may ask the Provost Marshal to investigate an interference complaint.Reasons for refusalIf the Provost Marshal does not consent to investigate, the Provost Marshal shall notify the Chairperson in writing of the reason why the consent was not given.
1998, c. 35, s. 82.
Duty to investigateThe Chairperson or the Provost Marshal, as the case may be, shall investigate an interference complaint as soon as practicable.Right to refuse or end investigationThe Chairperson may direct that no investigation of an interference complaint be started or that an investigation be ended if, in the Chairperson’s opinion,the complaint is frivolous, vexatious or made in bad faith;the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; orhaving regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.NoticeIf the Chairperson makes a direction, the Chairperson shall send to the complainant, the person who is the subject of the complaint, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a notice in writing setting out the direction and the reasons why it was made.
1998, c. 35, s. 82.
Report on investigationOn the completion of an investigation into an interference complaint, the Chairperson shall prepare and send a report setting out a summary of the complaint and the Chairperson’s findings and recommendations tothe Minister;the Chief of the Defence Staff, in the case of a complaint against an officer or a non-commissioned member;the Deputy Minister, in the case of a complaint against a senior official of the Department;the Judge Advocate General; andthe Provost Marshal.
1998, c. 35, s. 82.
Status reportsWithin sixty days after being notified of an interference complaint, the Chairperson shall, if the complaint has not been resolved, disposed of or otherwise dealt with before that time, and then each thirty days afterwards until the complaint is dealt with, send a report on the status of the complaint tothe complainant;the person who is the subject of the complaint;the Judge Advocate General; andthe Provost Marshal.Six-month reportIf a complaint has not been dealt with within six months, the Chairperson shall in each report sent after that period explain why not.ExceptionNo report shall be sent to the person who is the subject of a complaint if, in the Chairperson’s opinion, sending the report might adversely affect or hinder any investigation under this Act.
1998, c. 35, s. 82.
Investigations and Hearings by Complaints CommissionPublic interestIf at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.Withdrawn complaintThe Chairperson may cause an investigation to be held in respect of a complaint even if it has been withdrawn.NoticeIf the Chairperson decides to cause an investigation to be held, the Chairperson shall send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.ExceptionNo notice shall be sent to the person who is the subject of the complaint if, in the Chairperson’s opinion, sending the notice might adversely affect or hinder any investigation under this Act.Duties suspendedIf the Chairperson acts in respect of a conduct complaint under subsection (1), the Provost Marshal is not required to investigate, report on or otherwise deal with the complaint until the Provost Marshal receives a report under section 250.53 with respect to the complaint.
1998, c. 35, s. 82.
Report on investigationOn completion of an investigation under subsection 250.38(1), the Chairperson shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint, unless the Chairperson has caused, or intends to cause, a hearing to be held to inquire into the complaint.
1998, c. 35, s. 82.
Assignment of members to conduct hearingIf the Chairperson decides to cause a hearing to be held, the Chairperson shallassign one or more members of the Complaints Commission to conduct the hearing; andsend a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.DeemingFor the purposes of this Part, the member or members of the Complaints Commission who conduct a hearing are deemed to be the Complaints Commission.
1998, c. 35, s. 82.
PowersWhen conducting a hearing, the Complaints Commission has, in relation to the complaint before it, powerto summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;to administer oaths; andto receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.RestrictionNotwithstanding subsection (1), the Complaints Commission may not receive or acceptany evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;any answer given or statement made before a board of inquiry or summary investigation;any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;any answer given or statement made before a court of law or tribunal; orany answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).
1998, c. 35, s. 82.
Hearing in publicA hearing is to be held in public, except that the Complaints Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed:information that, if disclosed, could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement; andinformation affecting a person’s privacy or security interest, if that interest outweighs the public’s interest in the information.
1998, c. 35, s. 82.
Notice of hearingAs soon as practicable before the commencement of a hearing, the Complaints Commission shall serve a notice in writing of the time and place appointed for the hearing on the complainant and the person who is the subject of the complaint.Convenience to be consideredIf a person on whom a notice is served wishes to appear before the Complaints Commission, the Complaints Commission must consider the convenience of that person in fixing the time and the place for the hearing.Delay of hearingIf the complaint relates to conduct that is also the subject of disciplinary or criminal proceedings before a court or tribunal of first instance, the hearing may not take place until the disciplinary or criminal proceedings are completed.
1998, c. 35, s. 82.
Rights of persons interestedThe Complaints Commission shall afford a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing tothe complainant and the person who is the subject of the complaint, if they wish to appear; andany other person who satisfies the Complaints Commission that the person has a substantial and direct interest in the hearing.
1998, c. 35, s. 82.
Witness not excused from testifyingIn a hearing, no witness shall be excused from answering any question relating to the complaint before the Complaints Commission when required to do so by the Complaints Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.Answer not receivableNo answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.
1998, c. 35, s. 82.
ExpensesTravel and living expenses incurred in appearing before the Complaints Commission shall, in the discretion of the Complaints Commission, be paid in accordance with applicable Treasury Board directives, to the complainant and to the person who is the subject of the complaint, and to their counsel, if the Complaints Commission holds a hearing at a place in Canada that is not their ordinary place of residence.
1998, c. 35, s. 82.
Return of documents, etc.Documents and things presented to the Complaints Commission at a hearing shall, on request, be returned to the person who presented them within a reasonable time after completion of the Complaints Commission’s report on the complaint.
1998, c. 35, s. 82.
ReportOn completion of a hearing, the Complaints Commission shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out its findings and recommendations with respect to the complaint.
1998, c. 35, s. 82.
Review and Final ReportReview — conduct complaintOn receipt of a report under subsection 250.32(3) or section 250.39 or 250.48 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report.ExceptionIf the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.
1998, c. 35, s. 82.
Review — interference complaintOn receipt of a report under section 250.36, 250.39 or 250.48 in respect of an interference complaint, the complaint shall be reviewed in light of the findings and recommendations set out in the report bythe Chief of the Defence Staff, if the person who is the subject of the complaint is an officer or a non-commissioned member; andthe Deputy Minister, if the person who is the subject of the complaint is a senior official of the Department.ExceptionIf the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, the review shall be conducted by the Minister.
1998, c. 35, s. 82.
Notice of actionThe person who reviews a report under section 250.49 or 250.5 shall notify in writing the Minister and the Chairperson of any action that has been or will be taken with respect to the complaint.ReasonsIf the person decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.
1998, c. 35, s. 82.
Notice of actionIf the Minister reviews a report by reason of subsection 250.5(2), the Minister shall notify the Chairperson in writing of any action that has been or will be taken with respect to the complaint.ReasonsIf the Minister decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.
1998, c. 35, s. 82.
Final report by ChairpersonAfter receiving and considering a notice sent under section 250.51 or 250.52, the Chairperson shall prepare a final report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint.Recipients of reportA copy of the final report shall be sent to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal, the complainant, the person who is the subject of the complaint and all persons who have satisfied the Complaints Commission that they have a substantial and direct interest in the complaint.
1998, c. 35, s. 82.
MISCELLANEOUS PROVISIONS HAVING GENERAL APPLICATIONOathsOathsAt summary trials and courts martial, and at proceedings before a board of inquiry or a commissioner taking evidence under this Act, an oath shall be taken by or administered to the following persons in the manner and in the forms prescribed in regulations made by the Governor in Council:the officer presiding at the summary trial;the judge presiding at the court martial;each member of the panel of the court martial;each member of the board of inquiry;the commissioner;court reporters;interpreters; andsubject to section 16 of the Canada Evidence Act, witnesses.
R.S., 1985, c. N-5, s. 251;
1998, c. 35, s. 82.
Solemn affirmation instead of oathA person who is required to take an oath under this Act may, instead of taking an oath, make a solemn affirmation.EffectA solemn affirmation has the same force and effect as an oath.Prosecutions under the Criminal CodeAn oath or a solemn affirmation under this Act has, in respect of any prosecution under the Criminal Code, the same force and effect as an oath taken before a civil court.
1998, c. 35, s. 82.
Witness Fees and AllowancesWitness fees and allowancesA person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military Police Complaints Commission, a board of inquiry or a commissioner taking evidence under this Act is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.
1998, c. 35, s. 82.
Disposal by Civil Authorities of Deserters and Absentees without LeaveDefinition of justiceFor the purposes of this section and sections 253 and 254, justice means a justice as defined in the Criminal Code.Powers of arrest on reasonable groundsAny peace officer who on reasonable grounds believes or, if no peace officer is immediately available, any officer or non-commissioned member who believes on reasonable grounds that a person is a deserter or an absentee without leave may apprehend that person and forthwith bring the person before a justice.Issue of warrantA justice, if satisfied by evidence on oath that a deserter or an absentee without leave is, or is believed on reasonable grounds to be, within the jurisdiction of that justice, may issue a warrant authorizing the deserter or absentee without leave to be apprehended and brought forthwith before that or any other justice.Justice’s power to examine into caseWhere a person is brought before a justice charged with being a deserter or absentee without leave under this Act, the justice may examine into the case in like manner as if that person were brought before the justice accused of an indictable offence.
R.S., 1985, c. N-5, s. 252;
R.S., 1985, c. 31 (1st Supp.), s. 58.
Disposal of person brought before justiceA justice, if satisfied either by evidence on oath or by the admission of a person brought before the justice under section 252 that the person is a deserter or absentee without leave, shall cause him to be delivered into service custody in such manner as the justice may deem most expedient and, until the person can be so delivered, the justice may cause the person to be held in civil custody for such time as appears to the justice reasonably necessary for the purpose of delivering the person into service custody.Verification of admissionWhere a person has admitted to being a deserter or absentee without leave and evidence of the truth or falsehood of the admission is not then forthcoming, the justice before whom the person is brought shall remand him for the purpose of obtaining information respecting the truth or falsehood of the admission and, for that purpose, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.RemandsA justice before whom a person is brought under section 252 may from time to time remand him for a period not exceeding eight days on each appearance before the justice, but the whole period during which a person is so remanded shall not be longer than appears to the justice reasonably necessary for the purpose of obtaining the information referred to in subsection (2).Report following disposalWhere a justice before whom a person is brought under section 252 causes him to be delivered into service custody or to be held in civil custody, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.
R.S., c. N-4, s. 214.
Delivery by constable into service custodyWhere a person surrenders himself to a constable and admits desertion or absence without leave, the constable in charge of the police station to which the person is brought shall forthwith inquire into the case and, if from the admission it appears to the constable on inquiring into the case that the person is a deserter or absentee without leave, the constable may cause the person to be delivered into service custody, without bringing the person before a justice.Report where person delivered into service custodyWhere a constable causes a person to be delivered into service custody pursuant to subsection (1), the constable shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.
R.S., c. N-4, s. 214.
Certificate of Civil CourtsTransmission of certificate where person tried civillyWhere any person subject to the Code of Service Discipline has at any time been tried by a civil court, the clerk of that court or other authority having custody of the records of the court shall, if required by any officer of the Canadian Forces, transmit to that officer a certificate setting out the offence for which that person was tried, together with the judgment or order of the court thereon, and shall be allowed for that certificate the fee authorized by law.
R.S., c. N-4, s. 215.
Duties respecting IncarcerationExecution of warrantsEvery warden, governor, jailer, commanding officer, commandant or other keeper of a penitentiary, civil prison, service prison or detention barrack shall take cognizance of any warrant of committal purporting to be signed by a committing authority referred to in section 219 or 220, shall receive and detain, according to the exigency of that warrant, the person referred to therein and delivered into the custody of that warden, governor, jailer, commanding officer, commandant or other keeper, as the case may be, and shall confine that person until discharged or delivered over in due course of law.[Repealed, 1991, c. 43, s. 30]
R.S., 1985, c. N-5, s. 256;
1991, c. 43, s. 30.
ManoeuvresAuthorization by MinisterFor the purpose of training the Canadian Forces, the Minister may authorize the execution of military exercises or movements, referred to in this section as “manoeuvres”, over and on such parts of Canada and during such periods as are specified.NoticeNotice of manoeuvres shall, by appropriate publication, be given to the inhabitants of any area concerned.PowersUnits and other elements of the Canadian Forces may execute manoeuvres on and pass over such areas as are specified under subsection (1), stop or control all traffic thereover whether by water, land or air, draw water from such sources as are available, and do all things reasonably necessary for the execution of the manoeuvres.InterferenceAny person who wilfully obstructs or interferes with manoeuvres authorized under this section and any animal, vehicle, vessel or aircraft under the person’s control may be forcibly removed by any constable or by any officer, or by any non-commissioned member on the order of any officer.Bar of actionNo action lies by reason only of the execution of manoeuvres authorized under this section.
R.S., 1985, c. N-5, s. 257;
R.S., 1985, c. 31 (1st Supp.), s. 60.
[Repealed, R.S., 1985, c. 22 (4th Supp.), s. 74]CompensationAny person who suffers loss, damage or injury by reason of the exercise of any of the powers conferred by section 257 shall be compensated from the Consolidated Revenue Fund.
R.S., 1985, c. N-5, s. 260;
R.S., 1985, c. 22 (4th Supp.), s. 74.
Exemption from TollsDuties or tolls on roads, bridges, etc.No duties or tolls, otherwise payable by law in respect of the use of any pier, wharf, quay, landing-place, highway, road, right-of-way, bridge or canal, shall be paid by or demanded from any unit or other element of the Canadian Forces or any officer or non-commissioned member when on duty or any person under escort or in respect of the movement of any materiel, except that the Minister may authorize payment of duties and tolls in respect of that use.ExceptionNothing in this section affects the liability for payment of duties or tolls lawfully demandable in respect of any vehicles or vessels other than those belonging to or in the service of Her Majesty.
R.S., 1985, c. N-5, s. 261;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Ships in ConvoyMaster of merchant ship to obey convoying officerEvery master or other person in command of a merchant or other vessel under the convoy of any of Her Majesty’s Canadian ships shall obey the directions of the commanding officer of the convoy or the directions of the commanding officer of any of Her Majesty’s Canadian ships in all matters relating to the navigation or security of the convoy and shall take such precautions for avoiding the enemy as may be directed by any such commanding officer and, if the master or other person fails to obey the directions, that commanding officer may compel obedience by force of arms, without being liable for any loss of life or property that may result from the use of that force.
R.S., c. N-4, s. 222.
SalvageCrown may claim for salvage servicesWhere salvage services are rendered by or with the aid of a vessel or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces, Her Majesty may claim salvage for those services and has the same rights and remedies in respect of those services as any other salvor would have had if the vessel or aircraft had belonged to that other salvor.
R.S., c. N-4, s. 223.
Consent of Minister to salvage claimNo claim for salvage services by the commander or crew or part of the crew of a vessel or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces shall be finally adjudicated on unless the consent of the Minister to the prosecution of the claim is proved.Time for giving consentFor the purpose of this section, the consent of the Minister may be given at any time before final adjudication.Evidence of consentAny document purporting to give the consent of the Minister for the purpose of this section is evidence of that consent.Claim dismissed if no consentWhere a claim for salvage services is prosecuted and the consent of the Minister is not proved, the claim shall be dismissed with costs.
R.S., c. N-4, s. 223.
Minister may accept offers of settlementThe Minister may, on the recommendation of the Attorney General of Canada, accept, on behalf of Her Majesty and the commander and crew or part of the crew, offers of settlement made with respect to claims for salvage services rendered by vessels or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces.DistributionThe proceeds of any settlement made under subsection (1) shall be distributed in such manner as the Governor in Council may prescribe.
R.S., c. N-4, s. 223.
[Repealed, 2001, c. 26, s. 311]Previous VersionLimitation of Civil LiabilitiesRestriction of execution against officers and non-commissioned membersNo judgment or order given or made against an officer or non-commissioned member by any court in Canada shall be enforced by the levying of execution on any arms, ammunition, equipment, instruments or clothing used by that officer or non-commissioned member for military purposes.
R.S., 1985, c. N-5, s. 267;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Exemption from jury serviceEvery officer and non-commissioned member of the reserve force on active service and every officer and non-commissioned member of the regular force and special force is exempt from serving on a jury.
R.S., 1985, c. N-5, s. 268;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Limitation periodNo action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.Saving provisionNothing in subsection (1) is in bar of proceedings against any person under the Code of Service Discipline.
R.S., c. N-4, s. 227.
Actions barredNo action or other proceeding lies against any officer or non-commissioned member in respect of anything done or omitted by the officer or non-commissioned member in the execution of his duty under the Code of Service Discipline, unless the officer or non-commissioned member acted, or omitted to act, maliciously and without reasonable and probable cause.
R.S., 1985, c. N-5, s. 270;
R.S., 1985, c. 31 (1st Supp.), s. 60.
CompensationCompensation to certain public service employeesCompensation may, to such extent, in such manner and to such persons as the Governor in Council may by regulation prescribe, be paid in respect of disability or death resulting from injury or disease or aggravation thereof incurred by any person whileemployed in the federal public administration,employed under the direction of any part of the federal public administration, orengaged, with or without remuneration, in an advisory, supervisory or consultative capacity in or on behalf of the federal public administration,and performing any function in relation to the Canadian Forces or any forces cooperating with the Canadian Forces, if the injury or disease or aggravation thereof arose out of or was directly connected with the performance of that function.RestrictionNo compensation shall be paid under subsection (1) in respect of any disability or death for which a pension is paid or payable by virtue of any of the provisions of the Pension Act.
R.S., 1985, c. N-5, s. 271;
1998, c. 35, s. 83;
2003, c. 22, s. 224(E).
Previous VersionDependantsArrest of dependantsThe dependants, as defined by regulation, of members of the Canadian Forces on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by officers and non-commissioned members appointed as described in section 156 and may be handed over to the appropriate authorities of that place.
R.S., 1985, c. N-5, s. 272;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Jurisdiction of Civil CourtsOffences committed outside CanadaWhere a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of, and may be tried and punished by, a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place, or by any other court to which jurisdiction has been lawfully transferred.
R.S., c. N-4, s. 231.
InspectionsRegulationsThe Governor in Council may make regulationsauthorizing the inspection, in accordance with the custom or practice of the service, of any person or thing in, on or aboutany defence establishment, work for defence or materiel, orany quarters under the control of the Canadian Forces or the Department; andrespecting the access to, exclusion from and safety and conduct of persons in, on or about any defence establishment, work for defence or materiel, including, without restricting the generality of the foregoing, regulationsrespecting the inspection of persons and property entering, exiting or on any such place or materiel, andrequiring any person, as a condition of being given access to that place or materiel, to submit, on demand, to a search of the person and the person’s personal or movable property while entering or exiting that place or materiel or any restricted area within that place or materiel.
R.S., 1985, c. 31 (1st Supp.), s. 59;
1998, c. 35, s. 84.
SearchesSearchesExcept as provided for by regulations made pursuant to section 273.1, the following, namely,quarters under the control of the Canadian Forces or the Department and occupied for residential purposes by any person subject to the Code of Service Discipline either alone or with that person’s dependants, as well as any locker or storage space located in those quarters and exclusively used by that person or those dependants for personal purposes, andthe personal or movable property of any person subject to the Code of Service Discipline located in, on or about any defence establishment, work for defence or materiel,may be searched only if a warrant for that purpose has been issued or the search is otherwise authorized by law.
R.S., 1985, c. 31 (1st Supp.), s. 59;
1998, c. 35, s. 85.
Warrant by commanding officerSubject to sections 273.4 and 273.5, a commanding officer who is satisfied by information on oath that there is in any quarters, locker, storage space or personal or movable property referred to in section 273.2anything on or in respect of which any offence against this Act has been or is believed on reasonable grounds to have been committed,anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence against this Act, oranything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,may issue a warrant authorizing any officer or non-commissioned member named in the warrant, assisted by such other officers and non-commissioned members as are necessary, or a peace officer, to search the quarters, locker, storage space or personal or movable property for any such thing, and to seize and carry it before that commanding officer.
R.S., 1985, c. 31 (1st Supp.), s. 59;
1998, c. 35, s. 86.
Investigating commanding officerThe commanding officer who carries out or directly supervises the investigation of any matter may issue a warrant pursuant to section 273.3 in relation to that investigation only if that commanding officer believes on reasonable grounds thatthe conditions for the issuance of the warrant exist; andno other commanding officer is readily available to determine whether the warrant should be issued.
R.S., 1985, c. 31 (1st Supp.), s. 59.
Military policeSection 273.3 does not apply to a commanding officer of a military police unit.
R.S., 1985, c. 31 (1st Supp.), s. 59.
Public ServicePublic serviceSubject to subsection (2), the Governor in Council or the Minister may authorize the Canadian Forces to perform any duty involving public service.Law enforcement assistanceThe Governor in Council, or the Minister on the request of the Minister of Public Safety and Emergency Preparedness or any other Minister, may issue directions authorizing the Canadian Forces to provide assistance in respect of any law enforcement matter if the Governor in Council or the Minister, as the case may be, considers thatthe assistance is in the national interest; andthe matter cannot be effectively dealt with except with the assistance of the Canadian Forces.ExceptionSubsection (2) does not apply in respect of assistance that is of a minor nature and limited to logistical, technical or administrative support.RestrictionThe authority of the Minister under this section is subject to any directions issued by the Governor in Council.
1998, c. 35, s. 87;
2005, c. 10, s. 34.
Previous VersionCOMMUNICATIONS SECURITY ESTABLISHMENTDefinitionsThe following definitions apply in this Part.CanadianCanadienCanadian means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province.entityentitéentity means a person, group, trust, partnership or fund or an unincorporated association or organization and includes a state or a political subdivision or agency of a state.foreign intelligencerenseignements étrangersforeign intelligence means information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group, as they relate to international affairs, defence or security.global information infrastructureinfrastructure mondiale d’informationglobal information infrastructure includes electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks.MinisterministreMinister means the Minister of National Defence or such other member of the Queen’s Privy Council as may be designated by the Governor in Council to be responsible for the Communications Security Establishment.private communicationcommunication privéeprivate communication has the same meaning as in section 183 of the Criminal Code.
2001, c. 41, ss. 102, 128.
Communications Security Establishment continuedThe part of the federal public administration known as the Communications Security Establishment is hereby continued.ChiefThe Chief of the Communications Security Establishment, under the direction of the Minister or any person designated by the Minister, has the management and control of the Establishment and all matters relating to it.Directions by MinisterThe Minister may issue written directions to the Chief respecting the carrying out of the Chief’s duties and functions.Directions not statutory instrumentsDirections issued under subsection (3) are not statutory instruments within the meaning of the Statutory Instruments Act.
2001, c. 41, s. 102;
2003, c. 22, s. 224(E).
Previous VersionAppointment of CommissionerThe Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.DutiesThe duties of the Commissioner areto review the activities of the Establishment to ensure that they are in compliance with the law;in response to a complaint, to undertake any investigation that the Commissioner considers necessary; andto inform the Minister and the Attorney General of Canada of any activity of the Establishment that the Commissioner believes may not be in compliance with the law.Annual reportThe Commissioner shall, within 90 days after the end of each fiscal year, submit an annual report to the Minister on the Commissioner’s activities and findings, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.Powers of investigationIn carrying out his or her duties, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.Employment of legal counsel, advisers, etc.The Commissioner may engage the services of such legal counsel, technical advisers and assistants as the Commissioner considers necessary for the proper performance of his or her duties and, with the approval of the Treasury Board, may fix and pay their remuneration and expenses.DirectionsThe Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Part or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council.TransitionalThe Commissioner of the Communications Security Establishment holding office immediately before the coming into force of this section shall continue in office for the remainder of the term for which he or she was appointed.
2001, c. 41, s. 102.
MandateThe mandate of the Communications Security Establishment isto acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities;to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; andto provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.Protection of CanadiansActivities carried out under paragraphs (1)(a) and (b)shall not be directed at Canadians or any person in Canada; andshall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information.Limitations imposed by lawActivities carried out under paragraph (1)(c) are subject to any limitations imposed by law on federal law enforcement and security agencies in the performance of their duties.
2001, c. 41, s. 102.
Ministerial authorizationThe Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.Conditions for authorizationThe Minister may only issue an authorization under subsection (1) if satisfied thatthe interception will be directed at foreign entities located outside Canada;the information to be obtained could not reasonably be obtained by other means;the expected foreign intelligence value of the information that would be derived from the interception justifies it; andsatisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.Ministerial authorizationThe Minister may, for the sole purpose of protecting the computer systems or networks of the Government of Canada from mischief, unauthorized use or interference, in the circumstances specified in paragraph 184(2)(c) of the Criminal Code, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.Conditions for authorizationThe Minister may only issue an authorization under subsection (3) if satisfied thatthe interception is necessary to identify, isolate or prevent harm to Government of Canada computer systems or networks;the information to be obtained could not reasonably be obtained by other means;the consent of persons whose private communications may be intercepted cannot reasonably be obtained;satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent harm to Government of Canada computer systems or networks will be used or retained; andsatisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.Ministerial conditionsAn authorization made under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information derived from the private communications.Canadian ForcesThe Minister of National Defence may issue directions for the Canadian Forces to support the Establishment in carrying out activities authorized under this section.Directions not statutory instrumentsAuthorizations issued under subsections (1) and (3) and directions issued under subsection (6) are not statutory instruments within the meaning of the Statutory Instruments Act.Review of authorizationsThe Commissioner of the Communications Security Establishment shall review activities carried out under an authorization issued under this section to ensure that they are authorized and report annually to the Minister on the review.Meaning of Government of CanadaIn this section, Government of Canada means a federal institution, as defined in subsection 3(1) of the Official Languages Act.
2001, c. 41, s. 102.
Limits on activitiesThe Communications Security Establishment may only undertake activities that are within its mandate, consistent with ministerial direction and, if an authorization is required under section 273.65, consistent with the authorization.
2001, c. 41, s. 102.
Protection of personsNotwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization under section 273.65 or any person who assists such a person is justified in taking any reasonable action necessary to give effect to the authorization.
2001, c. 41, s. 102.
Effective period of authorizationAn authorization is valid for the period specified in it, and may be renewed for any period specified in the renewal. No authorization or renewal may be for a period longer than one year.Variance or cancellation of authorizationAn authorization may be varied or cancelled in writing at any time.
2001, c. 41, s. 102.
Exclusion of Part VI of Criminal CodePart VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this Part or in relation to a communication so intercepted.
2001, c. 41, s. 102.
Crown Liability and Proceedings ActNo action lies under section 18 of the Crown Liability and Proceedings Act in respect ofthe use or disclosure under this Part of any communication intercepted under the authority of a Ministerial authorization under section 273.65; orthe disclosure under this Part of the existence of such a communication.
2001, c. 41, s. 102.
AID OF THE CIVIL POWERDefinition of attorney generalFor the purposes of this Part, attorney general means the attorney general of any province, the acting attorney general of a province or any minister of a government of a province who performs for the time being the duties of a provincial attorney general.
R.S., c. N-4, s. 232.
Riot or disturbanceThe Canadian Forces, any unit or other element thereof and any officer or non-commissioned member, with materiel, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace, beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service, occurs or is, in the opinion of an attorney general, considered as likely to occur.
R.S., 1985, c. N-5, s. 275;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Exception in case of certain reservesNothing in this Part shall be deemed to impose liability to serve in aid of the civil power, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.
R.S., 1985, c. N-5, s. 276;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Attorney general of province may requisition aidWhere a riot or disturbance occurs or is considered as likely to occur, the attorney general of the province in which the place where the riot or disturbance occurs or is considered as likely to occur is situated, on the initiative of the attorney general or on the receipt of notification from a judge of a superior, county or district court having jurisdiction in the place that the services of the Canadian Forces are required in aid of the civil power, may, by requisition in writing addressed to the Chief of the Defence Staff, require the Canadian Forces, or such part thereof as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate considers necessary, to be called out on service in aid of the civil power.
R.S., c. N-4, s. 235.
Call out of Canadian ForcesOn receiving a requisition in writing made by an attorney general under section 277, the Chief of the Defence Staff, or such officer as the Chief of the Defence Staff may designate, shall, subject to such directions as the Minister considers appropriate in the circumstances and in consultation with that attorney general and the attorney general of any other province that may be affected, call out such part of the Canadian Forces as the Chief of the Defence Staff or that officer considers necessary for the purpose of suppressing or preventing any actual riot or disturbance or any riot or disturbance that is considered as likely to occur.
R.S., 1985, c. N-5, s. 278;
2004, c. 15, s. 79.
Previous VersionForm of requisitionA requisition of an attorney general under this Part may be in the following form, or to the like effect, and the form may, subject to section 280, be varied to suit the facts of the case:Province ofTo WitWhereas information has been received by me from responsible persons (or a notification has been received by me from a judge of a (superior) (county) (district) court having jurisdiction in ............) that a riot or disturbance of the peace beyond the powers of the civil authorities to suppress (or to prevent or to deal with) and requiring the aid of the Canadian Forces to that end has occurred and is in progress (or is considered as likely to occur) at ............;And whereas it has been made to appear to my satisfaction that the Canadian Forces are required in aid of the civil power;Now therefore I, ............, the Attorney General of ............, under and by virtue of the powers conferred by the National Defence Act, do hereby require you to call out the Canadian Forces or such part thereof as you consider necessary for the purpose of suppressing (or preventing or dealing with) the riot or disturbance.Dated at ............, this ............ day of ............, 19...............................................Attorney General
R.S., 1985, c. N-5, s. 279;
R.S., 1985, c. 22 (4th Supp.), s. 75.
What requisition must stateIn a requisition made under this Part, it shall be stated thatinformation has been received by the attorney general from responsible persons, or a notification has been received by the attorney general from a judge, that a riot or disturbance beyond the powers of the civil authorities to suppress or to prevent or to deal with, as the case may be, has occurred or is considered as likely to occur and that the Canadian Forces are required in aid of the civil power; andit has been made to appear to the satisfaction of the attorney general that the Canadian Forces are so required.[Repealed, R.S., 1985, c. 22 (4th Supp.), s. 76]Province bound by statements, undertakings and promises in requisitionEvery statement of fact contained in a requisition made under this Part is conclusive and binding on the province on behalf of which the requisition is made, and every undertaking or promise in the requisition is binding on the province and not open to question or dispute by reason of alleged incompetence or lack of authority on the part of the attorney general or for any other reason.Statement not open to disputeA statement of fact contained in a requisition made under this Part is not open to dispute by the Chief of the Defence Staff.
R.S., 1985, c. N-5, s. 280;
R.S., 1985, c. 22 (4th Supp.), s. 76.
Inquiry and report by attorney generalWhere a requisition is made under this Part, the attorney general of the province concerned shall, within seven days after the making of the requisition, cause an inquiry to be made into the circumstances that occasioned the calling out of the Canadian Forces or any part thereof, and the attorney general shall send a report on the circumstances to such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council for the purpose of this section.
R.S., 1985, c. N-5, s. 281;
1995, c. 11, s. 44.
When officers and non-commissioned members have powers of constablesOfficers and non-commissioned members when called out for service in aid of the civil power shall, without further authority or appointment and without taking oath of office, be held to have, in addition to their powers and duties as officers and non-commissioned members, all of the powers and duties of constables, so long as they remain so called out, but they shall act only as a military body and are individually liable to obey the orders of their superior officers.
R.S., 1985, c. N-5, s. 282;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Duration, increase and diminution of aid of civil powerThe Canadian Forces or any part thereof called out in aid of the civil power shall remain on duty, in such strength as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate deems necessary or orders, until notification that the Canadian Forces are no longer required in aid of the civil power is received from the attorney general of the province concerned and, from time to time as in the opinion of the Chief of the Defence Staff the exigencies of the situation require, the Chief of the Defence Staff may increase or diminish the number of officers and non-commissioned members called out.
R.S., 1985, c. N-5, s. 283;
R.S., 1985, c. 31 (1st Supp.), s. 60.
[Repealed, R.S., 1985, c. 22 (4th Supp.), s. 77]AdvancesThe moneys required to meet the expenses and costs occasioned by the calling out of the Canadian Forces as provided for in this Part and for the services rendered by them shall be paid out of the Consolidated Revenue Fund by the authority of the Governor in Council.
R.S., 1985, c. N-5, s. 285;
R.S., 1985, c. 22 (4th Supp.), s. 77.
OFFENCES TRIABLE BY CIVIL COURTSApplicationLiability to civil trialSubject to subsection (2), every person, including an officer or non-commissioned member, is liable to be tried in a civil court in respect of any offence prescribed in this Part.Special provisionNo charge against an officer or non-commissioned member in respect of any offence prescribed in this Part shall, if the complainant is any other officer or non-commissioned member, be tried by a civil court unless the consent thereto in writing of the commanding officer of the accused officer or non-commissioned member has first been obtained.
R.S., 1985, c. N-5, s. 286;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Limitation periodNo prosecution in a civil court shall be commenced against a person in respect of an offence prescribed in this Part, other than any of the offences referred to in section 298, except within six months after the date of commission of the offence charged.
R.S., c. N-4, s. 244.
OffencesBreach of regulations respecting defence establishments, works and materielEvery person who contravenes regulations respecting the access to, exclusion from, and safety and conduct of any persons in, on or about any defence establishment, work for defence or materiel is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.
R.S., c. N-4, s. 245.
False answer on enrolmentEvery person who appears before another person for the purpose of being enrolled and knowingly makes a false answer to any question relating to the enrolment put by or by direction of that other person to the person appearing for that purpose is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.
R.S., c. N-4, s. 246.
False medical certificateEvery medical practitioner who signs a false medical certificate or other document in respect ofthe examination of a person for the purpose of enrolment,the service or release of an officer or non-commissioned member, orthe disability or alleged disability of a person, purported to have arisen or to have been contracted during, in the course of, or as a result of the service of that person as an officer or non-commissioned member,is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.
R.S., 1985, c. N-5, s. 290;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Unlawful usage in advertising, trade or serviceEvery person who usesthe words “Canadian Forces” or “Canadian Armed Forces” or the name of any component, unit or other element thereof or any abbreviation thereof or any words or letters likely to be mistaken therefor,any picture or other representation of a member of the Canadian Forces, orany uniform, mark, badge or insignia in use in the Canadian Forces,in any advertising or in any trade or service, having been requested in writing by the Minister to cease that usage, is guilty of an offence punishable on summary conviction.Minister’s consent required for prosecutionNo proceedings in respect of an offence under this section shall be instituted without the consent of the Minister.
R.S., c. N-4, s. 248.
PersonationEvery person who falsely personates any other person in respect of any duty, act or thing required to be performed or done under this Act by that other person is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.
R.S., c. N-4, s. 249.
False representation of desertionEvery person who falsely represents himself to any military or civil authority to be a deserter from Her Majesty’s Forces is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.
R.S., c. N-4, s. 250.
Failure to attend paradeEvery officer or non-commissioned member of the reserve force who without lawful excuse neglects or refuses to attend any parade or training at the place and hour appointed therefor is guilty of an offence and liable on summary conviction for each offence, if an officer, to a fine not exceeding fifty dollars and, if a non-commissioned member, to a fine not exceeding twenty-five dollars.Each absence an offenceAbsence from any parade or training referred to in subsection (1) is, in respect of each day on which the absence occurs, a separate offence.
R.S., 1985, c. N-5, s. 294;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Neglecting personal equipmentEvery officer or non-commissioned member of the reserve force who fails to keep in proper order any personal equipment or who appears on parade or on any other occasion with the personal equipment of that officer or non-commissioned member out of proper order, unserviceable or deficient in any respect is guilty of an offence and liable on summary conviction to a fine not exceeding forty dollars for each offence.
R.S., 1985, c. N-5, s. 295;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Interruption or hindering of training or marchEvery person who without reasonable excuse interrupts or hinders the Canadian Forces while training or while on the march is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars and may be taken into custody and detained by any person by the order of an officer until the training or march is over for the day.
R.S., c. N-4, s. 253.
Hampering manoeuvresEvery person who without reasonable excuse obstructs or interferes with manoeuvres authorized under section 257 is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars.
R.S., c. N-4, s. 254.
Unlawful disposal, removal or possession of propertyEvery person whounlawfully disposes of or removes any property,when lawfully required, refuses to deliver up any property that is in the possession of that person, orwithout lawful cause, the proof of which lies on that person, has possession of any property,is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars for each offence.Definition of propertyFor the purposes of this section, property means any public property under the control of the Minister, non-public property and property of any of Her Majesty’s Forces or of any forces cooperating therewith.
R.S., c. N-4, s. 255.
Accessories to desertion and absence without leaveEvery person whoprocures, persuades, aids, assists or counsels an officer or non-commissioned member to desert or absent himself without leave, orin an emergency, aids, assists, harbours or conceals an officer or non-commissioned member who is a deserter or an absentee without leave and who does not satisfy the court that he did not know that the officer or non-commissioned member was a deserter or an absentee without leave,is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars and not less than one hundred dollars or to imprisonment for any term not exceeding twelve months or to both.Certificate of conviction of deserter or absenteeA certificate signed by the Judge Advocate General, or such person as the Judge Advocate General may appoint for that purpose, that an officer or non-commissioned member was convicted under this Act of desertion or absence without leave or had been continuously absent without leave for six months or more, and setting out the date of commencement and the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence that the officer or non-commissioned member was a deserter or absentee without leave during the period referred to in the certificate.
R.S., 1985, c. N-5, s. 299;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Aid to intending deserters or absenteesEvery person who, knowing that an officer or non-commissioned member is about to desert or absent himself without leave, aids or assists the officer or non-commissioned member in attempting to desert or absent himself without leave is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for any term not exceeding twelve months or to both.
R.S., 1985, c. N-5, s. 300;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Miscellaneous offencesEvery person whowilfully obstructs, impedes or otherwise interferes with any other person in the execution of any duty that under this Act or regulations, the other person is required to perform,counsels any other person not to perform any duty that, under this Act or regulations, the other person is required to perform,does an act to the detriment of any other person in consequence of the other person having performed a duty that, under this Act or regulations, the other person is required to perform,interferes with or impedes, directly or indirectly, the recruiting of the Canadian Forces,wilfully produces any disease or infirmity in, maims or injures himself or any other person with a view to enabling himself or the other person to avoid service in the Canadian Forces,with intent to enable any other person to render himself, or to induce the belief that the other person is, permanently or temporarily unfit for service in the Canadian Forces, supplies to or for the other person any drug or preparation calculated or likely to render the other person, or lead to the belief that the other person is, permanently or temporarily unfit for that service, orgives or receives, or is in any way concerned in the giving or receiving, of any valuable consideration in respect of enrolment, release or promotion in the Canadian Forces,is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for any term not exceeding twelve months or to both.
R.S., c. N-4, s. 258.
Offences of contemptEvery person is guilty of an offence and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or to both, where the personon being duly summoned as a witness under Part II, III or IV makes default in attending;being in attendance as a witness in any proceeding under Part II, III or IV,refuses to take an oath or make a solemn affirmation legally required of that person,refuses to produce any document or thing under that person’s control and required to be produced by that person, orrefuses to answer any question that requires an answer;at any proceeding under Part II, III or IV, uses insulting or threatening language or causes any interference or disturbance;prints observations or uses words likely to influence improperly a board of inquiry, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), a service tribunal, a commissioner taking evidence under this Act or the Military Police Complaints Commission or any witness at any proceeding under Part II, III or IV, or to bring a proceeding under any of those Parts into disrepute; ordisplays contempt, in any other manner whatever, at any proceeding under Part II, III or IV.
R.S., 1985, c. N-5, s. 302;
1998, c. 35, s. 90.
[Repealed, R.S., 1985, c. 22 (4th Supp.), s. 78]Breach of regulations respecting quartering, billeting and encampingEvery person who contravenes regulations respecting the quartering, billeting and encamping of a unit or other element of the Canadian Forces or of an officer or non-commissioned member is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars.
R.S., 1985, c. N-5, s. 304;
R.S., 1985, c. 31 (1st Supp.), s. 60.
Improper exaction of tollsEvery person who receives or demands a duty or toll in contravention of section 261 is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.
R.S., c. N-4, s. 262.
Failure to comply with convoy ordersEvery person who fails to comply with directions given under section 262 is guilty of an offence and liable, on summary conviction, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding twelve months or to both.
RELATED PROVISIONS
— 2008, c. 29, s. 28ReviewWithin two years after the day on which this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by the committee of either the Senate or the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons or by both Houses of Parliament, as the case may be, for that purpose.ReportWithin one year after the review is undertaken, or within any longer period that the Senate or the House of Commons or both Houses of Parliament may authorize, the committee shall submit a report on the review to Parliament, including a statement of any changes that the committee recommends.
— 2008, c. 29, s. 29Reference to General Court MartialFor the purposes of paragraphs 239.1(1)(b) and 240.3(b) of the National Defence Act, any reference to a General Court Martial is also a reference to a Disciplinary Court Martial.
— 2012, c. 1, par. 163(b)Pending applications — references in other legislationA reference to an application for a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to an application for a pardon that is not finally disposed of on the day on which this section comes into force:paragraph 202.14(2)(h) of the National Defence Act; and
— 2012, c. 1, par. 165(e)Pardons in effect — references in other legislationA reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act:the definition record suspension in section 227 of the National Defence Act; andAMENDMENTS NOT IN FORCE
— The definition “Minister” in subsection 2(1), as enacted by 2004, c. 15, s. 74MinisterministreMinister, except in Part VII, means the Minister of National Defence;
— 2004, c. 15, s. 77The Act is amended by adding the following after section 165.27:Reserve Military Judges PanelPanel establishedThere is established a panel, called the Reserve Military Judges Panel (in this section and sections 165.29 to 165.32 referred to as the “Panel”), to which the Governor in Council may name officers of the reserve force who have previously performedthe duties of a military judge under this Act; orbefore September 1, 1999, the duties of a president of a Standing Court Martial, a presiding judge of a Special General Court Martial or a judge advocate of a General Court Martial or Disciplinary Court Martial.Removal from PanelThe Governor in Council may remove from the Panel for cause the name of any officer on the recommendation of an Inquiry Committee referred to in section 165.21.Automatic removal from PanelThe name of an officer shall be removed from the Panel on the officer’sreaching the retirement age prescribed by regulations made by the Governor in Council; orvoluntarily ceasing to be an officer of the reserve force.Voluntary removal from PanelAn officer may give notice in writing to the Chief Military Judge that the officer wishes their name to be removed from the Panel. The removal takes effect either on the day the notice is received by the Chief Military Judge or on a later day if one is specified in the notice.Restriction on activitiesAn officer named to the Panel shall not engage in any business or professional activity that is incompatible with the duties that he or she may be required to perform under this Act.Chief Military JudgeThe Chief Military Judge may select any officer named to the Panel to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.Effect of selectionAn officer who is performing duties pursuant to subsection (1) has, while performing those duties, all the powers and duties of a military judge.TrainingThe Chief Military Judge may request any officer named to the Panel to undergo any training that may be specified by the Chief Military Judge.RemunerationAn officer named to the Panel who is performing duties or undergoing training under section 165.31 shall be paid remuneration at the daily rate of 1/251 of the annual rate of pay of a military judge other than the Chief Military Judge.
— 2004, c. 15, s. 78The Act is amended by adding the following after section 273.7:AUTHORIZATIONSComputer Systems and NetworksMinisterial authorizationThe Minister may authorize in writing, either individually or by class, any public servant employed in the Department, or any person acting on behalf of the Department or the Canadian Forces who is performing duties relating to the operation, maintenance or protection of computer systems or networks of the Department or the Canadian Forces, to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any such computer system or network, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.Authorization to Chief of Defence StaffThe Minister may authorize in writing the Chief of the Defence Staff to direct, either individually or by class, any officer or non-commissioned member to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any computer system or network of the Department or the Canadian Forces, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.Conditions for authorizationThe Minister may issue an authorization under subsection (1) or (2) only if satisfied thatthe interception is necessary to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain;the information to be obtained from the interception could not reasonably be obtained by other means;the consent of persons whose private communications may be intercepted cannot reasonably be obtained;satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain, will be used or retained; andsatisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.Conditions in authorizationAn authorization issued under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information contained in the private communications.Effective period of authorizationAn authorization issued under this section is valid for the period specified in it, and may be renewed for any period specified in the renewal. No authorization or renewal may be for a period longer than one year.Variance or cancellation of authorizationAn authorization issued under this section may be varied or cancelled in writing at any time.Authorizations not statutory instrumentsAuthorizations issued under this section are not statutory instruments within the meaning of the Statutory Instruments Act.Protection of personsNotwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization issued under this section, or any person who assists such a person, is justified in taking any reasonable action necessary to give effect to the authorization.Crown Liability and Proceedings ActNo action lies under section 18 of the Crown Liability and Proceedings Act in respect ofthe use or disclosure of any communication intercepted under the authority of an authorization issued under this section, if the use or disclosure of the communication is reasonably necessary to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain; orthe disclosure of the existence of such a communication.Exclusion of Part VI of Criminal CodePart VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this section or in relation to a communication so intercepted.Duties of CommissionerThe Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) has, in relation to the activities referred to in section 273.8, the following duties:to review activities carried out under an authorization issued under that section to ensure that they are in compliance with the law, and to report annually to the Minister on the review;in response to a complaint, to undertake any investigation that the Commissioner considers necessary; andto inform the Minister and, if the Commissioner considers it appropriate, the Attorney General of Canada, of any activity referred to in paragraph (a) that the Commissioner believes may not be in compliance with the law.Certain provisions applyFor the purposes of subsection (1), subsections 273.63(3) to (6) apply to the Commissioner.
— 2004, c. 15, s. 801998, c. 35, s. 89The headings before section 286 of the Act are replaced by the following:REINSTATEMENT IN CIVIL EMPLOYMENTInterpretationDefinitionsIn this Part, employer and Minister have the meaning prescribed in regulations made by the Governor in Council.ReinstatementEmployer’s duty to reinstateIf an officer or non-commissioned member of the reserve force is called out on service in respect of an emergency, the officer’s or member’s employer shall reinstate the officer or member in employment at the expiry of that service.Nature of reinstatementThe officer or member must be reinstated in a capacity and under terms and conditions of employment no less favourable to the officer or member than those that would have applied if the officer or member had remained in the employer’s employment.Officer or member must applyAn officer or member who wishes to be reinstated must apply to the employer for reinstatement within ninety days after the expiry of the officer’s or member’s actual service or service deemed extended by virtue of section 285.03.ExceptionThe employer’s duty to reinstate an officer or member does not apply in the circumstances prescribed in regulations made by the Governor in Council.Application procedureThe procedure for applying for reinstatement is that prescribed in regulations made by the Governor in Council.Hospitalization or incapacityIf, immediately following the officer’s or member’s service, the officer or member is hospitalized or is physically or mentally incapable of performing the duties of the position to which the officer or member would have been entitled on reinstatement, the period of hospitalization or incapacity, to a maximum prescribed in regulations made by the Governor in Council, is deemed for the purposes of this Part to be part of the period of the officer’s or member’s service.Benefits and obligations on reinstatementOn reinstatement, an officer’s or member’s benefits, and the employer’s obligations, in respect of remuneration, pension, promotion, permanent status, seniority, paid vacation and other employment benefits shall be in accordance with regulations made by the Governor in Council.Agreements or arrangementsAny agreement or arrangement between an employer and an officer or member respecting reinstatement continues in force, except to the extent that it is less advantageous to the officer or member than is this Part.Termination without reasonable causeDuring the one-year period following an officer’s or member’s reinstatement,the employer shall not terminate the officer’s or member’s employment without reasonable cause; andif the employer terminates the officer’s or member’s employment, the onus, in any prosecution under section 285.08, is on the employer to establish that the employer had reasonable cause.Administration and EnforcementReinstatement OfficersThe Minister may designate any person as a Reinstatement Officer to assist in the administration and enforcement of this Part, and shall issue to a Reinstatement Officer a certificate of designation.Powers and dutiesThe powers and duties of Reinstatement Officers are those prescribed in regulations made by the Governor in Council.Requests for informationA Reinstatement Officer may make reasonable requests of an employer for information relating to the reinstatement of an officer or member.Offence and PunishmentOffenceEvery employer who contravenes section 285.02 or 285.06 or a regulation made for the purpose of section 285.04 is guilty of an offence punishable on summary conviction.Additional orderA court that convicts an employer of an offence under subsection (1) may, in addition to any other punishment that it imposes, order the employer to pay to the officer or member affected an amount that the court considers reasonable in the circumstances.Special caseThe failure of an officer or member to perform the duties of their position during a period when the officer or member is being assisted by a Reinstatement Officer is not reasonable cause for terminating the officer’s or member’s employment.OffenceEvery person who fails to comply with a reasonable request made under subsection 285.07(3) is guilty of an offence punishable on summary conviction.Minister may prosecuteThe Minister shall institute and conduct a prosecution under section 285.08, without cost to the officer or member, if the Minister considers that the circumstances warrant a prosecution under that section.Time limitProceedings may be instituted under section 285.08 or 285.09 within, but not later than, one year after the time when the subject-matter of the proceedings arose.GeneralInconsistency with other lawsIn the event of any inconsistency between this Part, or regulations made for the purposes of this Part, and any other law, this Part or the regulations prevail to the extent of the inconsistency.ConsultationIn the implementation of this Part, the Ministershall consult with the provincial governments; andmay consult with any persons, associations, bodies and authorities that the Minister considers to be in a position to assist the Minister.OFFENCES TRIABLE BY CIVIL COURTSApplication
— 2004, c. 15, s. 81The Act is amended by replacing the words “Part VII” with the words “Part VIII” wherever they occur in the following provisions:the portion of subsection 2(2) before paragraph (a); andsubsections 130(1) and (2).