National Defence Act (R.S.C., 1985, c. N-5)

Act current to 2012-05-02 and last amended on 2012-03-16. Previous Versions

Review by Military Judge

Marginal note:Hearing by military judge

  • 159. (1) A 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.

  • Marginal note:Applicable operational considerations

    (2) In 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.
Marginal note:Onus on Canadian Forces

159.1 When 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.
Marginal note:Justification for retention in custody

159.2 For 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:

  • (a) custody is necessary to ensure the person’s attendance before a service tribunal or a civil court to be dealt with according to law;

  • (b) 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; and

  • (c) any 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.
Marginal note:Onus on person in custody

  • 159.3 (1) Notwithstanding 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.

  • Marginal note:Release on undertaking

    (2) If 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.