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An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (S.C. 2019, c. 15)

Assented to 2019-06-21

An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

S.C. 2019, c. 15

Assented to 2019-06-21

An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

SUMMARY

This enactment amends provisions of the National Defence Act governing the military justice system.

It adds a new Division, entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have a right to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.

It amends Part III of that Act to, among other things,

  • (a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary hearings;

  • (b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;

  • (c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;

  • (d) make testimonial aids more accessible to vulnerable witnesses;

  • (e) allow witnesses to testify using a pseudonym in appropriate cases;

  • (f) on application, make publication bans for victims under the age of 18 mandatory;

  • (g) in certain circumstances, require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor;

  • (h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;

  • (i) provide for different ways of presenting victim impact statements;

  • (j) allow for military impact statements and community impact statements to be considered for all service offences;

  • (k) provide, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;

  • (l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;

  • (m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;

  • (n) provide for a six-month limitation period in respect of summary hearings; and

  • (o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.

Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. N-5National Defence Act

 The heading before section 2 of the French version of the National Defence Act is replaced by the following:

Définitions et interprétation

  •  (1) The definitions service tribunal and summary trial in subsection 2(1) of the Act are repealed.

  • (2) The definition infraction d’ordre militaire in subsection 2(1) of the French version of the Act is replaced by the following:

    service offence

    infraction d’ordre militaire Infraction — à la présente loi, au Code criminel ou à une autre loi fédérale — commise par un justiciable du code de discipline militaire. (service offence)

  • (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

    military justice

    military justice means all aspects of the application of the Code of Service Discipline; (justice militaire)

    military justice system participant

    military justice system participant means a person who plays a role in the administration of military justice, including

    • (a) the Minister,

    • (b) the Judge Advocate General,

    • (c) an officer and non-commissioned member who acts under the supervision of the Judge Advocate General,

    • (d) a prosecutor and counsel for an accused person,

    • (e) a military judge,

    • (f) a superior commander, a commanding officer and a delegated officer, as defined in section 162.3,

    • (g) a custody review officer, as defined in section 153,

    • (h) a member of a panel of a General Court Martial and an officer and non-commissioned member who has been appointed to be a member of a such a panel,

    • (i) an officer and non-commissioned member who is appointed by a commanding officer for the purpose of supporting a court martial,

    • (j) an officer and non-commissioned member who is authorized to lay or refer a charge,

    • (k) a prospective witness, a witness who has been summoned to appear and a witness who has testified,

    • (l) an officer and non-commissioned member referred to in paragraph (g) of the definition peace officer in section 2 of the Criminal Code,

    • (m) a commanding officer of a service prison or detention barrack and a person who acts under the supervision of such a commanding officer, and

    • (n) a person who acts under the supervision of the Chief Military Judge or the Court Martial Administrator; (personne associée au système de justice militaire)

    service infraction

    service infraction means a service infraction created by regulations made by the Governor in Council; (manquement d’ordre militaire)

    summary hearing

    summary hearing means a hearing conducted under section 163; (audience sommaire)

    victim

    victim means an individual against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III, an individual who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any person. (victime)

  • (4) Section 2 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Acting on victim’s behalf

      (1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III:

      • (a) if the victim is dead or is incapable, other than for operational reasons, of acting on their own behalf,

        • (i) the victim’s spouse or the individual who was at the time of the victim’s death their spouse,

        • (ii) the individual who is, or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year,

        • (iii) a relative or dependant of the victim,

        • (iv) an individual who has in law or fact custody of, or is responsible for the care or support of, the victim, and

        • (v) an individual who has in law or fact custody of, or is responsible for the care or support of, a dependant of the victim; and

      • (b) if, for operational reasons, the victim is unable to act on their own behalf and has requested the appointment of a member of the Canadian Forces to act on their behalf, a member appointed by the Chief of the Defence Staff or any officer authorized by the Chief of Defence Staff.

    • Marginal note:Exception — not a victim

      (1.2) An individual is not a victim in relation to a service offence, or entitled to exercise a victim’s rights under Division 1.1 of Part III, if the individual is charged with the offence, found guilty of the offence or found unfit to stand trial or not responsible on account of mental disorder in respect of the offence.

Marginal note:R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 13)

 Paragraph 30(4)(a) of the Act is replaced by the following:

  • (a) an 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 court martial or any civil court, and

 The Act is amended by adding the following after the heading of Part III:

Purpose

Marginal note:Purpose

  • 55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.

  • Marginal note:Clarification

    (2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.

Marginal note:1998, c. 35, s. 20

  •  (1) Paragraphs 66(1)(a) and (b) of the Act are replaced by the following:

    • (a) has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or

    • (b) has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence.

  • Marginal note:R.S., c. 31 (1st Supp.), s. 45; 1998, c. 35, s. 20

    (2) Subsections 66(2) and (3) of the Act are replaced by the following:

    • Marginal note:Exception

      (2) Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.

    • Marginal note:Effect of other offences admitted at previous trial

      (3) A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.

 
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