Short Title

Marginal note:Short title

1 This Act may be cited as the National Defence Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  aircraft

  aéronef

  aircraft 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; (aéronef)

  aircraft material

  matériel aéronautique

  aircraft 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; (matériel aéronautique)

  civil court

  tribunal civil

  civil court means a court of ordinary criminal jurisdiction in Canada and includes a court of summary jurisdiction; (tribunal civil)

  civil custody

  garde civile

  civil 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; (garde civile)

  civil prison

  prison civile

  civil 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; (prison civile)

  Code of Service Discipline

  code de discipline militaire

  Code of Service Discipline means the provisions of Part III; (code de discipline militaire)

  court martial

  cour martiale

  court martial includes a General Court Martial and a Standing Court Martial; (cour martiale)

  Court Martial Appeal Court

  Cour d’appel de la cour martiale

  Court Martial Appeal Court means the Court Martial Appeal Court of Canada established by section 234; (Cour d’appel de la cour martiale)

  criminal organization

  organisation criminelle

  criminal organization has the same meaning as in subsection 467.1(1) of the Criminal Code; (organisation criminelle)

  criminal organization offence

  infraction d’organisation criminelle

  criminal organization offence means

  • (a) an 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, or

  • (b) a 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); (infraction d’organisation criminelle)

  defence establishment

  établissement de défense

  defence 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; (établissement de défense)

  Department

  ministère

  Department means the Department of National Defence; (ministère)

  Deputy Minister

  sous-ministre

  Deputy Minister means the Deputy Minister of National Defence; (sous-ministre)

  detention barrack

  caserne disciplinaire

  detention barrack means a place designated as such under subsection 205(1); (caserne disciplinaire)

  emergency

  état d’urgence

  emergency means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended; (état d’urgence)

  enemy

  ennemi

  enemy includes armed mutineers, armed rebels, armed rioters and pirates; (ennemi)

  enrol

  Version anglaise seulement

  enrol means to cause any person to become a member of the Canadian Forces; (Version anglaise seulement)

  finding of not responsible on account of mental disorder

  verdict de non-responsabilité pour cause de troubles mentaux

  finding of not responsible on account of mental disorder means a finding made under subsection 202.14(1); (verdict de non-responsabilité pour cause de troubles mentaux)

  Grievance Board

  Comité des griefs

  Grievance Board means the Canadian Forces Grievance Board established by subsection 29.16(1); (Comité des griefs)

  Her Majesty’s Canadian Ship

  navire canadien de Sa Majesté

  Her Majesty’s Canadian Ship means any vessel of the Canadian Forces commissioned as a vessel of war; (navire canadien de Sa Majesté)

  Her Majesty’s Forces

  forces de Sa Majesté

  Her Majesty’s Forces means the armed forces of Her Majesty wherever raised, and includes the Canadian Forces; (forces de Sa Majesté)

  man

  man[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 42]

  materiel

  matériels

  materiel 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; (matériels)

  mental disorder

  troubles mentaux

  mental disorder means a disease of the mind; (troubles mentaux)

  military

  militaire

  military shall be construed as relating to all or any part of the Canadian Forces; (militaire)

  military judge

  juge militaire

  military judge means a military judge appointed under subsection 165.21(1); (juge militaire)

  Minister

  ministre

  Minister means the Minister of National Defence; (ministre)

  mutiny

  mutinerie

  mutiny 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; (mutinerie)

  non-commissioned member

  militaire du rang

  non-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; (militaire du rang)

  non-public property

  biens non publics

  non-public property means

  • (a) all money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,

  • (b) 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,

  • (c) by-products and refuse and the proceeds of the sale thereof to the extent prescribed under subsection 39(2), and

  • (d) all 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); (biens non publics)

  officer

  officier

  officer means

  • (a) a person who holds Her Majesty’s commission in the Canadian Forces,

  • (b) a person who holds the rank of officer cadet in the Canadian Forces, and

  • (c) any person who pursuant to law is attached or seconded as an officer to the Canadian Forces; (officier)

  penitentiary

  pénitencier

  penitentiary

  • (a) means a penitentiary established under Part I of the Corrections and Conditional Release Act,

  • (b) 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, and

  • (c) means, 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; (pénitencier)

  personal equipment

  équipement personnel

  personal 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; (équipement personnel)

  possession

  possession[Repealed, 1995, c. 39, s. 175]

  Provost Marshal

  prévôt

  Provost Marshal means the Canadian Forces Provost Marshal; (prévôt)

  public property

  biens publics

  public property means all money and property of Her Majesty in right of Canada; (biens publics)

  regular force

  force régulière

  regular force means the component of the Canadian Forces that is referred to in subsection 15(1); (force régulière)

  release

  libération

  release means the termination of the service of an officer or non-commissioned member in any manner; (libération)

  reserve force

  force de réserve

  reserve force means the component of the Canadian Forces that is referred to in subsection 15(3); (force de réserve)

  scale of punishments

  échelle des peines

  scale of punishments means the scale of punishments as set out in subsection 139(1); (échelle des peines)

  serious offence

  infraction grave

  serious 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; (infraction grave)

  service convict

  condamné militaire

  service 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; (condamné militaire)

  service custody

  garde militaire

  service 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; (garde militaire)

  service detainee

  détenu militaire

  service 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; (détenu militaire)

  service offence

  infraction d’ordre militaire

  service 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; (infraction d’ordre militaire)

  service prison

  prison militaire

  service prison means a place designated as such under subsection 205(1); (prison militaire)

  service prisoner

  prisonnier militaire

  service 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; (prisonnier militaire)

  service tribunal

  tribunal militaire

  service tribunal means a court martial or a person presiding at a summary trial; (tribunal militaire)

  special force

  force spéciale

  special force means such component of the Canadian Forces as may be established pursuant to subsection 16(1); (force spéciale)

  summary trial

  procès sommaire

  summary 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; (procès sommaire)

  superior officer

  supérieur

  superior 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; (supérieur)

  terrorism offence

  infraction de terrorisme

  terrorism offence means

  • (a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code,

  • (b) 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,

  • (c) 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, or

  • (d) a 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); (infraction de terrorisme)

  terrorist activity

  activité terroriste

  terrorist activity has the same meaning as in subsection 83.01(1) of the Criminal Code; (activité terroriste)

  terrorist group

  groupe terroriste

  terrorist group has the same meaning as in subsection 83.01(1) of the Criminal Code; (groupe terroriste)

  unfit to stand trial

  inaptitude à subir son procès

  unfit 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 to

  • (a) understand the nature or object of the proceedings,

  • (b) understand the possible consequences of the proceedings, or

  • (c) communicate with counsel; (inaptitude à subir son procès)

  unit

  unité

  unit means an individual body of the Canadian Forces that is organized as such pursuant to section 17, with the personnel and materiel thereof. (unité)

• Meaning of possession

  (2) For the purposes of the Code of Service Discipline and Part VII,

  • (a) a person has anything in possession when the person has it in the person’s personal possession or knowingly

    • (i) has it in the actual possession or custody of another person, or

    • (ii) has 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; and

  • (b) where 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.

PART IDepartment of National Defence

Establishment of the Department

Marginal note:Formation of department

3 There 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.

Minister

Marginal note:Duties

4 The 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 for

• (a) the construction and maintenance of all defence establishments and works for the defence of Canada; and

• (b) research relating to the defence of Canada and to the development of and improvements in materiel.

Marginal note:Designation of person to execute Minister’s functions

5 The 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.

Marginal note:Associate Minister

6 The 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.

Deputy Minister

Marginal note:Appointment

7 There shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure.

Marginal note:Associate Deputy Ministers

8 The 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.

Judge Advocate General

Marginal note:Appointment

• 9 (1) The 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.

• Marginal note:Tenure of office

  (2) The Judge Advocate General holds office during pleasure for a term not exceeding four years.

• Marginal note:Re-appointment

  (3) The Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Legal adviser

9.1 The 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.

Marginal note:Superintendence of military justice

• 9.2 (1) The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

• Marginal note:Regular reviews

  (2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

Marginal note:Responsible to Minister

• 9.3 (1) The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.

• Marginal note:Annual report

  (2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.

• Marginal note:Tabling in Parliament

  (3) The 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.

Marginal note:Rank

9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

Marginal note:Authority to act for Judge Advocate General

10 The 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.

Marginal note:Non-derogation

10.1 For 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.

Materiel

Marginal note:Delivery of materiel for sale or disposal

11 The 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.

Regulations

Marginal note:Power of Governor in Council to make regulations

• 12 (1) The 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.

• Marginal note:Minister’s power to make regulations

  (2) Subject 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.

• Marginal note:Treasury Board’s power to make regulations

  (3) The Treasury Board may make regulations

  • (a) prescribing the rates and conditions of issue of pay of military judges;

  • (b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

  • (c) providing 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.

Marginal note:Limitation on Minister’s power

13 Where 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.

Marginal note:Military Police Professional Code of Conduct

13.1 The 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.

PART IIThe Canadian Forces

Constitution

Marginal note:Canadian Forces

14 The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.

Marginal note:Regular force

• 15 (1) There 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.

• Marginal note:Composition of regular force

  (2) The 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.

• Marginal note:Reserve force

  (3) There 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.

• Marginal note:Composition of reserve force

  (4) The 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.

Marginal note:Special force

• 16 (1) In 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 of

  • (a) officers and non-commissioned members of the regular force who are placed in the special force under conditions prescribed in regulations;

  • (b) 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; and

  • (c) officers 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.

• Marginal note:Composition of special force

  (2) The 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.

Units and Other Elements

Marginal note:Organization

• 17 (1) The 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.

• Marginal note:Components

  (2) A 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.

Chief of the Defence Staff

Marginal note:Appointment, rank and duties of Chief of Defence Staff

• 18 (1) The 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.

• Marginal note:Responsibility and channels of communication

  (2) Unless 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.

Marginal note:Vice Chief of the Defence Staff

18.1 There shall be an officer appointed by the Chief of the Defence Staff to be the Vice Chief of the Defence Staff.

Marginal note:Absence or incapacity of Chief of the Defence Staff

18.2 In 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.

Powers of Command

Marginal note:Authority of officers and non-commissioned members

19 The authority and powers of command of officers and non-commissioned members shall be as prescribed in regulations.

Enrolment

Marginal note:Commissioned officers

• 20 (1) Commissions of officers in the Canadian Forces shall be granted by Her Majesty during pleasure.

• Marginal note:Officer cadets and non-commissioned members

  (2) Persons 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.

• Marginal note:When consent of parent or guardian required

  (3) A 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.

Marginal note:Ranks of officers and non-commissioned members

• 21 (1) For 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.

• Marginal note:Use of other designations

  (2) The 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.

Marginal note:Numbers in ranks and trade groups

22 The 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.

Marginal note:Obligation to serve

• 23 (1) The enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.

• Marginal note:Oaths and declarations on enrolment

  (2) Oaths 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.

Marginal note:Consent to transfer

24 No 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.

Marginal note:Effect of receipt of pay if not enrolled

25 A 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.

Marginal note:Effect of receipt of pay if irregularly enrolled

• 26 (1) A 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.

• Marginal note:Provision for release

  (2) A 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.

• Marginal note:Method of release

  (3) The 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.

Attachment and Secondment

Marginal note:Manner and conditions of attachment and secondment

27 An 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.

Promotion

Marginal note:Authority to promote

28 Subject 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.

Grievances

Marginal note:Right to grieve

• 29 (1) An 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.

• Marginal note:Exceptions

  (2) There is no right to grieve in respect of

  • (a) a decision of a court martial or the Court Martial Appeal Court;

  • (b) a decision of a board, commission, court or tribunal established other than under this Act; or

  • (c) a matter or case prescribed by the Governor in Council in regulations.

• Marginal note:Manner and conditions

  (3) A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

• Marginal note:No penalty for grievance

  (4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

• Marginal note:Correction of error

  (5) Notwithstanding 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.

Marginal note:Authorities for determination of grievances

• 29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

• Marginal note:Different authorities

  (2) The regulations may provide that different types of grievances may be considered and determined by different authorities.

Marginal note:Final authority

29.11 The Chief of the Defence Staff is the final authority in the grievance process.

Marginal note:Referral to Grievance Board

• 29.12 (1) The 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.

• Marginal note:Material to be provided to Board

  (2) When referring a grievance to the Grievance Board, the Chief of the Defence Staff shall provide the Grievance Board with a copy of

  • (a) the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

  • (b) the decision made by each authority in respect of the grievance; and

  • (c) any other information under the control of the Canadian Forces that is relevant to the grievance.

Marginal note:Chief of the Defence Staff not bound

• 29.13 (1) The Chief of the Defence Staff is not bound by any finding or recommendation of the Grievance Board.

• Marginal note:Reasons

  (2) If 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.

Marginal note:Delegation

29.14 The 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, except

• (a) the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; and

• (b) the power to delegate under this section.

Marginal note:Decision is final

29.15 A 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.

Canadian Forces Grievance Board

Marginal note:Canadian Forces Grievance Board established

• 29.16 (1) There 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.

• Marginal note:Full- or part-time

  (2) The Chairperson and one Vice-Chairperson are each full-time members and the other members may be appointed as full-time or part-time members.

• Marginal note:Tenure and removal

  (3) Each member holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.

• Marginal note:Re-appointment

  (4) A member is eligible to be re-appointed on the expiry of a first or subsequent term of office.

• Marginal note:Duties of full-time members

  (5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

• Marginal note:Conflict of interest — part-time members

  (6) Part-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.

• Marginal note:Remuneration

  (7) Members 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.

• Marginal note:Travel and living expenses

  (8) Members 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.

• Marginal note:Status of members

  (9) Members who are not officers or non-commissioned members are deemed

  • (a) to be employed in the public service for the purposes of the Public Service Superannuation Act;

  • (b) to be employees for the purposes of the Government Employees Compensation Act; and

  • (c) to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

• Marginal note:Secondment

  (10) An 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.

• Marginal note:Oath of office

  (11) Every 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.)

Marginal note:Chairperson

• 29.17 (1) The Chairperson is the chief executive officer of the Grievance Board and has supervision over and direction of its work and staff.

• Marginal note:Absence or incapacity

  (2) In 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.

• Marginal note:Delegation

  (3) The 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).

Marginal note:Head office

29.18 The head office of the Grievance Board shall be at the place in Canada designated by the Governor in Council.

Marginal note:Staff

• 29.19 (1) The 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.

• Marginal note:Experts

  (2) The 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.

Marginal note:Duties and functions

• 29.2 (1) The 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.

• Marginal note:Duty to act expeditiously

  (2) The Grievance Board shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:Powers

29.21 The Grievance Board has, in relation to the review of a grievance referred to it, the power

• (a) to 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;

• (b) to administer oaths; and

• (c) to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

Marginal note:Restriction

29.22 The 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.

Marginal note:Witness not excused from testifying

• 29.23 (1) No 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.

• Marginal note:Answer not receivable

  (2) No 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.

Marginal note:Expenses

29.24 Travel 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.

Marginal note:Return of documents, etc.

29.25 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.

Marginal note:Rules

• 29.26 (1) The Chairperson may make rules respecting

  • (a) the manner of dealing with grievances referred to the Grievance Board, including the conduct of investigations and hearings by the Grievance Board;

  • (b) the apportionment of the work of the Grievance Board among its members and the assignment of members to review grievances; and

  • (c) the performance of the duties and functions of the Grievance Board.

• Marginal note:Hearings in private

  (2) A 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.

Marginal note:Protection of members

29.27 No 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.

Marginal note:Annual report

• 29.28 (1) The 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.

• Marginal note:Tabling in Parliament

  (2) The 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.

Release

Marginal note:Entitlement

• 30 (1) Except 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.

• Marginal note:Effect of illegal absence

  (2) Except 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.

• Marginal note:Exception in emergency or when on active service

  (3) Where 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.

• Marginal note:Reinstatement

  (4) Subject to regulations made by the Governor in Council, where

  • (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 service tribunal or any court, and

  • (b) the 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.

Active Service

Marginal note:Placing forces on active service

• 31 (1) The 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 so

  • (a) by reason of an emergency, for the defence of Canada;

  • (b) in consequence of any action undertaken by Canada under the United Nations Charter; or

  • (c) in 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.

• Marginal note:When officers and non-commissioned members deemed on active service

  (2) An officer or non-commissioned member who

  • (a) is 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,

  • (b) has been placed on active service, or

  • (c) pursuant 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.

Marginal note:Proclamation for meeting of Parliament

32 Whenever 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.

Service

Marginal note:Liability in case of regular force

• 33 (1) The 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.

• Marginal note:Liability in case of reserve force

  (2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof

  • (a) may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and

  • (b) may 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.

• Marginal note:Exception in case of reserve force

  (3) Nothing 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.

• Marginal note:Meaning of duty

  (4) In this section, duty means any duty that is military in nature and includes any duty involving public service authorized under section 273.6.

Limitation on Deployment

Marginal note:Persons under eighteen

34 A person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.

Pay and Allowances

Marginal note:Treasury Board to establish

• 35 (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.

• Marginal note:Reimbursements and allowances

  (2) The 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.

Supply and Issue of Materiel

Marginal note:Ministerial approval

36 The 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.

Public Property

Marginal note:Liability for loss or damage

37 The 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.

Non-public Property

Marginal note:Non-public property of units

• 38 (1) The 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.

• Marginal note:Non-public property of disbanded units

  (2) The 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.

• Marginal note:Non-public property of units or elements in altered circumstances

  (3) Where, 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).

Marginal note:Other non-public property

• 39 (1) Non-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.

• Marginal note:By-products and refuse

  (2) By-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.

• Marginal note:Alienation of non-public property

  (3) Except 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.

Marginal note:Liability for loss or damage

40 The 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.

Marginal note:Ministerial directions

• 41 (1) The 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.

• Marginal note:Audit

  (2) Non-public property accounts shall be audited as the Minister may from time to time direct.

• Marginal note:Special provision

  (3) The Financial Administration Act does not apply to non-public property.

Service Estates

Marginal note:Collection, administration and distribution

• 42 (1) The 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.

• Marginal note:Definition of service estate

  (2) For 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):

  • (a) service pay and allowances;

  • (b) all other emoluments emanating from Her Majesty that, at the date of death, are due or otherwise payable;

  • (c) personal equipment that the deceased person is, under regulations, permitted to retain;

  • (d) 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; and

  • (e) in 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.

Presumption of Death

Marginal note:Authority to issue certificate

43 Where 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.

Personal Effects of Absentees

Marginal note:Vesting and disposal

44 The 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.

Boards of Inquiry

Marginal note:Convening boards

• 45 (1) The 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.

• Marginal note:Powers

  (2) A board of inquiry has, in relation to the matter before it, power

  • (a) to 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;

  • (b) to administer oaths;

  • (c) 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; and

  • (d) to examine any record and make any inquiry that the board considers necessary.

Marginal note:Witness not excused from testifying

• 45.1 (1) No 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.

• Marginal note:Answer not receivable

  (2) No 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.

Cadet Organizations

Marginal note:Formation

• 46 (1) The 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.

• Marginal note:Training, administration, provision and command

  (2) The 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.

• Marginal note:Not part of Canadian Forces

  (3) The cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.

Educational Institutions

Marginal note:Establishment

• 47 (1) The 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.

• Marginal note:Control and administration

  (2) The institutions referred to in subsection (1) shall be governed and administered in the manner prescribed by the Minister.

Service Associations

Marginal note:Establishment

• 48 (1) The Governor in Council may establish associations and organizations for purposes designed to further the defence of Canada.

• Marginal note:Accommodation, materiel and facilities

  (2) The 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.

Exercise of Authority

Marginal note:Exercise of authority of officer or non-commissioned member by another

49 Any 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.

Marginal note:Method of signifying orders

50 Orders 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.

Notification of Orders

Marginal note:Publication

• 51 (1) All 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.

• Marginal note:Registered mail

  (2) All 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.

• Marginal note:Saving provision

  (3) Notwithstanding 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.

Validity of Documents

Marginal note:Authenticity of documents

52 A 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.

Marginal note:Signature on commissions

• 53 (1) The 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.

• Marginal note:Validity of signature

  (2) A 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.

Marginal note:Validity of bonds

54 Every 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.

PART IIICode of Service Discipline

DIVISION 1Disciplinary Jurisdiction of the Canadian Forces

Application

55 to 59 [Repealed, 1998, c. 35, s. 17]

Marginal note:Persons subject to Code of Service Discipline

• 60 (1) The following persons are subject to the Code of Service Discipline:

  • (a) an officer or non-commissioned member of the regular force;

  • (b) an officer or non-commissioned member of the special force;

  • (c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

    • (i) undergoing drill or training, whether in uniform or not,

    • (ii) in uniform,

    • (iii) on duty,

    • (iv) [Repealed, 1998, c. 35, s. 19]

    • (v) called out under Part VI in aid of the civil power,

    • (vi) called out on service,

    • (vii) placed on active service,

    • (viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,

    • (ix) serving with any unit or other element of the regular force or the special force, or

    • (x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

  • (d) 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;

  • (e) 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;

  • (f) 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;

  • (g) 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;

  • (h) an alleged spy for the enemy;

  • (i) 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; and

  • (j) a 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.

• Marginal note:Continuing liability

  (2) Every 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).

• Marginal note:Retention of status and rank

  (3) Every 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).

Marginal note:Persons accompanying Canadian Forces

• 61 (1) For 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 person

  • (a) participates 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;

  • (b) 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;

  • (c) is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or

  • (d) is embarked on a vessel or aircraft of that unit or other element.

• Marginal note:How persons accompanying Canadian Forces to be treated

  (2) Subject 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.

• Marginal note:Certificate entitling person to treatment as officer

  (3) A 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.

Marginal note:Command

• 62 (1) Every 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.

• Marginal note:Spies

  (2) Every 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.

• Marginal note:Released persons serving sentence

  (3) Every 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.

Marginal note:Persons under special engagement

• 63 (1) Subject 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.

• Marginal note:Agreement entitling person to treatment as officer

  (2) Where 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.

• Marginal note:Command where person under special engagement

  (3) Every 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.

64 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 44]

Marginal note:Persons under command of officer deemed their superior officer

• 65 (1) Every 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.

• Marginal note:Prohibited interpretation

  (2) Nothing 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.

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

• 66 (1) A 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 person

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

  • (b) has 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.

• Marginal note:Exception

  (2) Nothing 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.

• 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 service tribunal or a civil court in respect of that offence.

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

67 Subject 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.

Place of Trial

Marginal note:No territorial limitation

68 Every 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.

Period of Liability

Marginal note:When person is liable

• 69 (1) A 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.

• Marginal note:Sections 130 and 132

  (2) Despite 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.

Limitations with respect to Certain Offences

Marginal note:Offences not triable by service tribunal

70 A service tribunal shall not try any person charged with any of the following offences committed in Canada:

• (a) murder;

• (b) manslaughter; or

• (c) an offence under any of sections 280 to 283 of the Criminal Code.

• (d) to (f) [Repealed, 1998, c. 35, s. 22]

Jurisdiction of Civil Courts

Marginal note:No interference with civil jurisdiction

71 Subject 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.

DIVISION 2Service Offences and Punishments

Responsibility for Offences

Marginal note:Parties to offences

• 72 (1) Every person is a party to and guilty of an offence who

  • (a) actually commits it;

  • (b) does or omits to do anything for the purpose of aiding any person to commit it;

  • (c) abets any person in committing it; or

  • (d) counsels or procures any person to commit it.

• Marginal note:Attempts

  (2) Every 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.

• Marginal note:Common intention

  (3) Where 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.

Misconduct of Commanders in Presence of Enemy

Marginal note:Offences by commanders when in action

73 Every officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces who

• (a) when 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,

• (b) 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,

• (c) 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,

• (d) being in action, improperly withdraws from the action,

• (e) improperly fails to pursue an enemy or to consolidate a position gained,

• (f) improperly fails to relieve or assist a known friend to the utmost of his power, or

• (g) when 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.

Misconduct of any Person in Presence of Enemy

Marginal note:Offences by any person in presence of enemy

74 Every person who

• (a) improperly delays or discourages any action against the enemy,

• (b) goes over to the enemy,

• (c) when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect,

• (d) improperly abandons or delivers up any defence establishment, garrison, place, materiel, post or guard,

• (e) assists the enemy with materiel,

• (f) improperly casts away or abandons any materiel in the presence of the enemy,

• (g) 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,

• (h) when on watch in the presence or vicinity of the enemy, leaves his post before he is regularly relieved or sleeps or is drunk,

• (i) behaves before the enemy in such manner as to show cowardice, or

• (j) does 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.

Security

Marginal note:Offences related to security

75 Every person who

• (a) improperly holds communication with or gives intelligence to the enemy,

• (b) 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,

• (c) 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,

• (d) makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it,

• (e) gives a parole, watchword, password, countersign or identification signal different from that which he received,

• (f) without authority alters or interferes with any identification or other signal,

• (g) improperly occasions false alarms,

• (h) when acting as sentry or lookout, leaves his post before he is regularly relieved or sleeps or is drunk,

• (i) forces a safeguard or forces or strikes a sentinel, or

• (j) does 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.

Prisoners of War

Marginal note:Offences related to prisoners of war

76 Every person who

• (a) by want of due precaution, or through disobedience of orders or wilful neglect of duty, is made a prisoner of war,

• (b) having been made a prisoner of war, fails to rejoin Her Majesty’s service when able to do so, or

• (c) having 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.

Miscellaneous Operational Offences

Marginal note:Offences related to operations

77 Every person who

• (a) does violence to any person bringing materiel to any of Her Majesty’s Forces or to any forces cooperating therewith,

• (b) irregularly detains any materiel being conveyed to any unit or other element of Her Majesty’s Forces or of any forces cooperating therewith,

• (c) 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,

• (d) without orders from the person’s superior officer, improperly destroys or damages any property,

• (e) breaks into any house or other place in search of plunder,

• (f) commits any offence against the property or person of any inhabitant or resident of a country in which he is serving,

• (g) steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations,

• (h) steals any money or property that has been left exposed or unprotected in consequence of warlike operations, or

• (i) takes 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.

Spies for the Enemy

Marginal note:Offence of being spy

78 Every person who spies for the enemy is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Mutiny

Marginal note:Mutiny with violence

79 Every 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.

Marginal note:Mutiny without violence

80 Every 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.

Marginal note:Offences related to mutiny

81 Every person who

• (a) causes or conspires with any other person to cause a mutiny,

• (b) endeavours to persuade any person to join in a mutiny,

• (c) being present, does not use his utmost endeavours to suppress a mutiny, or

• (d) being 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.

Seditious Offences

Marginal note:Advocating governmental change by force

82 Every 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.

Insubordination

Marginal note:Disobedience of lawful command

83 Every 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.

Marginal note:Striking or offering violence to a superior officer

84 Every 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.

Marginal note:Insubordinate behaviour

85 Every 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.

Marginal note:Quarrels and disturbances

86 Every person who

• (a) quarrels or fights with any other person who is subject to the Code of Service Discipline, or

• (b) uses 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.

Marginal note:Resisting or escaping from arrest or custody

87 Every person who

• (a) being concerned in a quarrel, fray or disorder,

  • (i) refuses to obey an officer, though of inferior rank, who orders the person into arrest, or

  • (ii) strikes or uses or offers violence to any such officer,

• (b) 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,

• (c) resists an escort whose duty it is to apprehend him or to have him in charge, or

• (d) breaks 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.

Desertion

Marginal note:Offence

• 88 (1) Every 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.

• Marginal note:Definition

  (2) A person deserts who

  • (a) being 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;

  • (b) having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;

  • (c) absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;

  • (d) 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; or

  • (e) while 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.

• Marginal note:Presumption of desertion

  (3) A 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.

Marginal note:Connivance at desertion

89 Every person who

• (a) being 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, or

• (b) fails 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.

Absence without Leave

Marginal note:Offence

• 90 (1) Every 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.

• Marginal note:Definition

  (2) A person absents himself without leave who

  • (a) without authority leaves his place of duty;

  • (b) without authority is absent from his place of duty; or

  • (c) having 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.

Marginal note:False statement in respect of leave

91 Every 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.

Disgraceful Conduct

Marginal note:Scandalous conduct by officers

92 Every 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.

Marginal note:Cruel or disgraceful conduct

93 Every 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.

Marginal note:Traitorous or disloyal utterances

94 Every 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.

Marginal note:Abuse of subordinates

95 Every 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.

Marginal note:Making false accusations or statements or suppressing facts

96 Every person who

• (a) makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, or

• (b) when 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 fact

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Drunkenness

• 97 (1) Drunkenness 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.

• Marginal note:When committed

  (2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,

  • (a) is unfit to be entrusted with any duty that the person is or may be required to perform; or

  • (b) behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.

Marginal note:Malingering, aggravating disease or infirmity or injuring self or another

98 Every person who

• (a) malingers or feigns or produces disease or infirmity,

• (b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

• (c) wilfully 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.

Offences in relation to Service Arrest and Custody

Marginal note:Detaining unnecessarily or failing to bring up for investigation

99 Every 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.

Marginal note:Setting free without authority or allowing or assisting escape

100 Every person who

• (a) without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody,

• (b) 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, or

• (c) assists 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.

Marginal note:Escape from custody

101 Every 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.

Marginal note:Failure to comply with conditions

101.1 Every 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.

Marginal note:Hindering arrest or confinement or withholding assistance when called on

102 Every person who

• (a) resists 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, or

• (b) when called on, refuses or neglects to assist an officer or non-commissioned member in the performance of any such duty

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Withholding delivery over or assistance to civil power

103 Every 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.

Offences in relation to Vessels

Marginal note:Losing, stranding or hazarding vessels

104 Every 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.

105 [Repealed, 1998, c. 35, s. 30]

Marginal note:Disobedience of captain’s orders

• 106 (1) Every 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.

• Marginal note:Command in ship

  (2) For 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.

Offences in relation to Aircraft

Marginal note:Wrongful acts in relation to aircraft or aircraft material

107 Every person who

• (a) in 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,

• (b) 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, or

• (c) during 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.

Marginal note:Signing inaccurate certificate

108 Every 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.

Marginal note:Low flying

109 Every 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.

Marginal note:Disobedience of captain’s orders

• 110 (1) Every 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.

• Marginal note:Command in aircraft

  (2) For the purposes of this section,

  • (a) 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; and

  • (b) if 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.

Offences in relation to Vehicles

Marginal note:Improper driving of vehicles

• 111 (1) Every person who

  • (a) drives 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,

  • (b) 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, or

  • (c) having 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.

• Marginal note:Occupant of driver’s seat deemed attempting to drive

  (2) For 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.

Marginal note:Improper use of vehicles

112 Every person who

• (a) uses a vehicle of the Canadian Forces for an unauthorized purpose,

• (b) without authority uses a vehicle of the Canadian Forces for any purpose, or

• (c) uses 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.

Offences in relation to Property

Marginal note:Causing fires

113 Every 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.

Marginal note:Stealing

• 114 (1) Every 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.

• Marginal note:Definition

  (2) For the purposes of this section,

  • (a) 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 intent

    • (i) to 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,

    • (ii) to pledge it or deposit it as security,

    • (iii) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or

    • (iv) to 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;

  • (b) 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;

  • (c) the taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment; and

  • (d) it 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.

• Marginal note:When movable inanimate things capable of being stolen

  (3) Every 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.

Marginal note:Receiving

115 Every 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.

Marginal note:Destruction, damage, loss or improper disposal

116 Every person who

• (a) wilfully 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,

• (b) wilfully destroys, damages or improperly sells any property belonging to another person who is subject to the Code of Service Discipline, or

• (c) sells, 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.

Marginal note:Miscellaneous offences

117 Every person who

• (a) connives at the exaction of an exorbitant price for property purchased or rented by a person supplying property or services to the Canadian Forces,

• (b) 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,

• (c) 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,

• (d) demands or accepts compensation, consideration or personal advantage for convoying a vessel entrusted to his care,

• (e) 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, or

• (f) commits 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.

Offences in relation to Tribunals

Definition of tribunal

• 118 (1) For 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.

• Marginal note:Contempt

  (2) Every person who

  • (a) being duly summoned or ordered to attend as a witness before a tribunal, fails to attend or to remain in attendance,

  • (b) refuses to take an oath or make a solemn affirmation lawfully required by a tribunal to be taken or made,

  • (c) refuses to produce any document in the power or control of, and lawfully required by a tribunal to be produced by, that person,

  • (d) refuses when a witness to answer any question to which a tribunal may lawfully require an answer,

  • (e) uses insulting or threatening language before, or causes any interruption or disturbance in the proceedings of, a tribunal, or

  • (f) commits any other contempt of a tribunal

  is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Failure to appear or attend

118.1 Every 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.

Marginal note:False evidence

119 Every 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.

Offence in Relation to the Sex Offender Information Registration Act

Marginal note:Failure to comply with order or obligation

• 119.1 (1) Every 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.

• Marginal note:Reasonable excuse

  (2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.

• Marginal note:Proof of certain facts by certificate

  (3) In 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.

• Marginal note:Attendance and cross-examination

  (4) The 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.

• Marginal note:Notice of intention to produce

  (5) A 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.

Offence in Relation to DNA Identification

Marginal note:Failure to comply with order or summons

• 119.2 (1) Every 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.

• Marginal note:For greater certainty

  (2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.

Offences in relation to Billeting

Marginal note:Ill-treatment or non-payment of occupant or person on whom billeted

120 Every person who

• (a) ill-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, or

• (b) fails 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.

Offences in relation to Enrolment

Marginal note:Fraudulent enrolment

121 Every 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.

Marginal note:False answers or false information

122 Every person who knowingly

• (a) makes a false answer to any question set out in any document required to be completed, or

• (b) furnishes 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.

Marginal note:Assisting unlawful enrolment

123 Every 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.

Miscellaneous Offences

Marginal note:Negligent performance of duties

124 Every 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.

Marginal note:Offences in relation to documents

125 Every person who

• (a) wilfully 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,

• (b) when signing a document required for official purposes, leaves in blank any material part for which the signature is a voucher, or

• (c) with 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.

Marginal note:Refusing immunization, tests, blood examination or treatment

126 Every 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.

Marginal note:Injurious or destructive handling of dangerous substances

127 Every 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.

Marginal note:Conspiracy

128 Every 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.

Conduct to the Prejudice of Good Order and Discipline

Marginal note:Prejudicing good order or discipline

• 129 (1) Any 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.

• Marginal note:Offence and contraventions prejudicial to good order and discipline

  (2) An act or omission constituting an offence under section 72 or a contravention by any person of

  • (a) any of the provisions of this Act,

  • (b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or

  • (c) any general, garrison, unit, station, standing, local or other orders,

  is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

• Marginal note:Attempts to commit offences

  (3) An 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.

• Marginal note:Saving provision

  (4) Nothing in subsection (2) or (3) affects the generality of subsection (1).

• Marginal note:Not intended to cover offences elsewhere provided for

  (5) No 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.

• Marginal note:Officer’s responsibility not affected

  (6) The 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.

Offences Punishable by Ordinary Law

Marginal note:Service trial of civil offences

• 130 (1) An act or omission

  • (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or

  • (b) that 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).

• Marginal note:Punishment

  (2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,

  • (a) if the conviction was in respect of an offence

    • (i) committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or

    • (ii) committed outside Canada under section 235 of the Criminal Code,

    impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or

  • (b) in any other case,

    • (i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or

    • (ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.

• Marginal note:Code of Service Discipline applies

  (3) All 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).

• Marginal note:Saving provision

  (4) Nothing 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.

Marginal note:Reference to Attorney General

131 For 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.

Marginal note:Offences under law applicable outside Canada

• 132 (1) An 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).

• Marginal note:Punishment for offence under law applicable outside Canada

  (2) Subject 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.

• Marginal note:Application of Code of Service Discipline

  (3) All 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).

• Marginal note:Saving provision

  (4) Nothing 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.

• Marginal note:Contravention of customs laws

  (5) Where 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.

Conviction of Cognate Offence

Marginal note:Person charged with desertion

• 133 (1) A person charged with desertion may be found guilty of attempting to desert or of being absent without leave.

• Marginal note:Person charged with attempt to desert

  (2) A person charged with attempting to desert may be found guilty of being absent without leave.

Marginal note:Person charged with violent offence against officer

• 134 (1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

• Marginal note:Person charged with insubordinate behaviour

  (2) A person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.

Marginal note:Conviction of offence in circumstances involving lower punishment

135 A 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.

Marginal note:Powers on service trial of civil offences

136 Where 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.

Marginal note:Offence charged, attempt proved

• 137 (1) Where 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.

• Marginal note:Attempt charged, full offence proved

  (2) Where, 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.

• Marginal note:Conviction a bar

  (3) An 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.

Marginal note:Where tribunal may make special finding of guilty

138 Where a service tribunal concludes that

• (a) the 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, and

• (b) the 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.

Punishments

Marginal note:Scale of punishments

• 139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

  • (a) imprisonment for life;

  • (b) imprisonment for two years or more;

  • (c) dismissal with disgrace from Her Majesty’s service;

  • (d) imprisonment for less than two years;

  • (e) dismissal from Her Majesty’s service;

  • (f) detention;

  • (g) reduction in rank;

  • (h) forfeiture of seniority;

  • (i) severe reprimand;

  • (j) reprimand;

  • (k) fine; and

  • (l) minor punishments.

• Marginal note:Definition of less punishment

  (2) Where 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.

Marginal note:Imprisonment for shorter term

140 Every 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.

Marginal note:Dismissal as accompanying punishment

• 140.1 (1) Where 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.

• Marginal note:Dismissal as accompanying punishment

  (2) Where 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.

Marginal note:Reduction in rank as accompanying punishment

140.2 Where 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 be

• (a) in the case of an officer, to the lowest commissioned rank; and

• (b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.

Marginal note:Sentence of imprisonment for life

• 140.3 (1) Where a court martial imposes a punishment of imprisonment for life, the sentence to be pronounced shall be

  • (a) in 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;

  • (b) 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;

  • (c) 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;

  • (d) 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); and

  • (e) in 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.

• Marginal note:Provisions of Criminal Code apply

  (2) Sections 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, and

  • (a) a 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; and

  • (b) a 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.

Marginal note:Power of court martial to delay parole

• 140.4 (1) Notwithstanding 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.

• Marginal note:Condition

  (2) The 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.

• Marginal note:Criminal organization offences

  (3) Notwithstanding 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.

• Marginal note:Power of court martial to delay parole

  (3.1) Notwithstanding 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.

• Marginal note:Principles

  (4) For 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.

Marginal note:Dismissal with disgrace

• 141 (1) Where 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.

• Marginal note:Effective date of dismissal

  (1.1) A 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.

• Marginal note:Consequences

  (2) A 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.

Marginal note:Detention

• 142 (1) The punishment of detention is subject to the following conditions:

  • (a) 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; and

  • (b) no officer may be sentenced to detention.

• Marginal note:Reduction in rank during detention

  (2) If 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.

Marginal note:Reduction in rank

• 143 (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.

• Marginal note:Restrictions

  (2) The punishment of reduction in rank does not

  • (a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and

  • (b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.

Marginal note:Forfeiture of seniority

144 Where 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.

Marginal note:Fine

• 145 (1) A fine must be imposed in a stated amount.

• Marginal note:Terms of payment

  (2) The terms of payment of a fine are in the discretion of the service tribunal that imposes the fine.

• Marginal note:Variation of terms of payment

  (3) The 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.

Marginal note:Minor punishments

146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.

Marginal note:Limitation

147 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.

Prohibition Orders

Marginal note:Prohibition order

• 147.1 (1) Where a person is convicted by a court martial of an offence

  • (a) in the commission of which violence against a person was used, threatened or attempted,

  • (b) 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,

  • (c) relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, or

  • (d) that 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.

• Marginal note:Duration of prohibition order

  (2) An order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.

• Marginal note:Application of order

  (3) Unless 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.

• Marginal note:Notification

  (4) A 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.

Marginal note:Requirement to surrender

147.2 A 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,

• (a) 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, and

• (b) every 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.

Marginal note:Forfeiture

• 147.3 (1) Unless 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.

• Marginal note:Disposal

  (2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.

Marginal note:Authorizations revoked or amended

147.4 Every 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.

Marginal note:Return to owner

147.5 Where 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,

• (a) 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, and

• (b) had 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.

Sentences

Marginal note:One sentence only to be passed

148 Only 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.

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

149 Where 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.

149.1 [Repealed before coming into force, 2005, c. 22, s. 47]

Punishment for Certain Offences

Marginal note:Punishment for certain offences

• 149.2 (1) Notwithstanding 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.

• Marginal note:Offender must be notified

  (2) Subsection (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.

Ignorance of Law

Marginal note:Ignorance not to constitute excuse

150 The 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.

Civil Defences

Marginal note:Rules of civil courts applicable

151 All 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.

152 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]

DIVISION 3Arrest and Pre-Trial Custody

Interpretation

Marginal note:Definitions

153 The definitions in this section apply in this Division.

custody review officer

officier réviseur

custody review officer, in respect of a person in custody, means

• (a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

• (b) if 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. (officier réviseur)

designated offence

infraction désignée

designated offence means

• (a) an offence that is punishable under section 130 that is

  • (i) listed in section 469 of the Criminal Code,

  • (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

  • (iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

• (b) an offence under this Act where the minimum punishment is imprisonment for life;

• (c) 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;

• (d) an offence under this Act that is a criminal organization offence; or

• (e) an offence under this Act that is a terrorism offence. (infraction désignée)

Authority to Arrest

Marginal note:General authority

• 154 (1) Every 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.

• Marginal note:Reasonably necessary force

  (2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

Marginal note:Powers of officers

• 155 (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  • (a) any non-commissioned member;

  • (b) any officer of equal or lower rank; and

  • (c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

• Marginal note:Powers of non-commissioned members

  (2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  • (a) any non-commissioned member of lower rank; and

  • (b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

• Marginal note:Arrest of persons other than officers or non-commissioned members

  (3) Every 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.

Marginal note:Powers of military police

156 Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may

• (a) detain 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; and

• (b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

Marginal note:Issue of warrants

• 157 (1) Subject 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 who

  • (a) has committed,

  • (b) is believed on reasonable grounds to have committed, or

  • (c) is charged under this Act with having committed

  a service offence.

• Marginal note:Limitation

  (2) An 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.

• Marginal note:Contents of warrants

  (3) In 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.

• Marginal note:Saving provision

  (4) Nothing 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.

Action following Arrest

Marginal note:Release from custody

• 158 (1) A 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, including

  • (a) the gravity of the offence alleged to have been committed;

  • (b) the need to establish the identity of the person under arrest;

  • (c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

  • (d) 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;

  • (e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

  • (f) the necessity to ensure the safety of the person under arrest or any other person.

• Marginal note:Retention in custody

  (2) If 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.

• Marginal note:Duty to receive into service custody

  (3) The 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.

• Marginal note:Account in writing

  (4) The 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.

Marginal note:Report of custody

• 158.1 (1) The 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.

• Marginal note:Contents

  (2) The 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.

• Marginal note:Representations concerning release

  (3) Before the report of custody is delivered to the custody review officer,

  • (a) a copy of the report and the account in writing must be provided to the person in custody; and

  • (b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

• Marginal note:Representations to be reduced to writing

  (4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

• Marginal note:Accompanying documents

  (5) When 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.

Initial Review

Marginal note:Review of report of custody

• 158.2 (1) The 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.

• Marginal note:Duty to release

  (2) After 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).

Marginal note:Continuing duty to release

158.3 If, 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.

Marginal note:Duty to retain in custody if designated offence

158.4 Notwithstanding 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.

Marginal note:Duty to review where charge not laid

158.5 If 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.

Marginal note:Release with or without conditions

• 158.6 (1) The 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:

  • (a) remain under military authority;

  • (b) report at specified times to a specified military authority;

  • (c) remain within the confines of a specified defence establishment or at a location within a geographical area;

  • (d) abstain from communicating with any witness or specified person, or refrain from going to any specified place; and

  • (e) comply with such other reasonable conditions as are specified.

• Marginal note:Review

  (2) A direction to release a person with or without conditions may, on application, be reviewed by

  • (a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

  • (b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

• Marginal note:Powers

  (3) After 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).

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.

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.

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.

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.

Marginal note:Release with or without undertaking

• 159.4 (1) The 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.

• Marginal note:Variation of undertaking

  (2) The undertaking under which a person is released may be varied

  • (a) by direction of a military judge on application with reasonable notice being given; or

  • (b) with the written consent of the person and the Director of Military Prosecutions.

Marginal note:Hearing may be adjourned

159.5 The 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.

Marginal note:Alternate means of hearing

• 159.6 (1) The 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.

• Marginal note:Representations and factors to be considered

  (2) In deciding whether to make the direction, the military judge shall take into account

  • (a) the location of the person in custody;

  • (b) the gravity of the offence;

  • (c) the circumstances under which the unit or element detaining the person in custody is deployed;

  • (d) the availability of counsel for the Canadian Forces and the person in custody;

  • (e) the limitations of available telecommunications devices;

  • (f) the time required to bring the person in custody and the person’s counsel before the military judge; and

  • (g) any other matter that the military judge considers relevant.

Marginal note:Reasons

159.7 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

Duty of Director of Military Prosecutions

Marginal note:Review after 90 days

159.8 If 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.

Review by Court Martial Appeal Court

Marginal note:Review of direction

• 159.9 (1) At 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.

• Marginal note:Application of provisions

  (2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.

DIVISION 4Commencement of Proceedings

Interpretation

Marginal note:Definition of commanding officer

160 In 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.

Laying of Charge

Marginal note:Laying of charge

161 Proceedings 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.

Marginal note:Referral to commanding officer

161.1 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

162 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

Right to Trial by Court Martial

Marginal note:Election

162.1 Except 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.

Marginal note:Referral of charge

162.2 When 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.

DIVISION 5Summary Trials

Interpretation

Marginal note:Definitions

162.3 The definitions in this section apply in this Division.

commanding officer

commanding officer, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160. (commandant)

superior commander

superior 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. (commandant supérieur)

Summary Trials by Commanding Officers

Marginal note:Jurisdiction

• 163 (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

  • (a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

  • (b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

  • (c) 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;

  • (d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and

  • (e) the 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.

• Marginal note:Limitation period

  (1.1) A 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.

• Marginal note:Prohibition on presiding

  (2) Unless 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 if

  • (a) the commanding officer carried out or directly supervised the investigation of the offence;

  • (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

  • (c) the commanding officer laid the charge or caused it to be laid.

• Marginal note:Sentences

  (3) Subject 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:

  • (a) detention for a period not exceeding thirty days;

  • (b) reduction in rank by one rank;

  • (c) severe reprimand,

  • (d) reprimand,

  • (e) a fine not exceeding basic pay for one month, and

  • (f) minor punishments.

• Marginal note:Delegation

  (4) A 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:

  • (a) detention not exceeding fourteen days;

  • (b) severe reprimand;

  • (c) reprimand;

  • (d) a fine not exceeding basic pay for fifteen days; and

  • (e) minor punishments.

Marginal note:When no summary trial

• 163.1 (1) A 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, to

  • (a) another officer who has jurisdiction to try the accused person by summary trial; or

  • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

• Marginal note:Subsequent proceedings not precluded

  (2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

• Marginal note:Charge may be referred

  (3) If 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).

Summary Trial by Superior Commanders

Marginal note:Jurisdiction

• 164 (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

  • (a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

  • (b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;

  • (c) 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;

  • (d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and

  • (e) the 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.

• Marginal note:Limitation period

  (1.1) A 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.

• Marginal note:Prohibition on presiding

  (2) Unless 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 if

  • (a) the superior commander carried out or directly supervised the investigation of the offence;

  • (b) 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; or

  • (c) the superior commander laid the charge or caused it to be laid.

• Marginal note:Exception

  (3) A 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.

• Marginal note:Sentences

  (4) Subject 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:

  • (a) severe reprimand;

  • (b) reprimand; and

  • (c) fine.

Marginal note:When no summary trial

• 164.1 (1) A 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, to

  • (a) another officer who has jurisdiction to try the accused person by summary trial; or

  • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

• Marginal note:Subsequent proceedings not precluded

  (2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

• Marginal note:Charge may be referred

  (3) If 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).

Referral to Director of Military Prosecutions

Marginal note:Duty to refer

• 164.2 (1) Subject 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.

• Marginal note:Exception

  (2) Where 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 if

  • (a) the 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; and

  • (b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred

• 165 (1) A 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

  (2) 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.

Director of Military Prosecutions

Marginal note:Appointment

• 165.1 (1) The 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.

• Marginal note:Tenure of office and removal

  (2) The 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.

• Marginal note:Powers of Inquiry Committee

  (2.1) The Inquiry Committee is deemed to have the powers of a court martial.

• Marginal note:Re-appointment

  (3) The Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

165.11 The 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.

Marginal note:Preferring charges

• 165.12 (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

  • (a) prefer the charge; or

  • (b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

• Marginal note:Withdrawing charges

  (2) The 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.

• Marginal note:Effect of withdrawing charge

  (3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

Marginal note:Referral of charge

165.13 If 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.

165.14 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

165.15 The 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.

Marginal note:Acting Director of Military Prosecutions

165.16 The 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.

Marginal note:Relationship to Judge Advocate General

• 165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

• Marginal note:General instructions

  (2) The 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.

• Marginal note:Specific instructions

  (3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

• Marginal note:Availability to public

  (4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

• Marginal note:Exception

  (5) Subsection (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.

• Marginal note:Copies to Minister

  (6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

Court Martial Administrator

Marginal note:Appointment

165.18 There shall be a person appointed to be the Court Martial Administrator.

Marginal note:Duties

• 165.19 (1) The 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.

• Marginal note:Other duties

  (2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

• Marginal note:Relationship to Chief Military Judge

  (3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

Marginal note:Convening General Court Martial

• 165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

  • (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

  • (b) an offence punishable under section 130 that is punishable by imprisonment for life; or

  • (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

• Marginal note:Consent to be tried by Standing Court Martial

  (2) An 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.

• Marginal note:Withdrawal of consent

  (3) The 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.

Marginal note:Convening Standing Court Martial

165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

• (a) an 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; or

• (b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.

Marginal note:Choice of accused

• 165.193 (1) An 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.

• Marginal note:Notification

  (2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

• Marginal note:Failure to make choice

  (3) If 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.

• Marginal note:New choice — as of right

  (4) The 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.

• Marginal note:New choice — with consent

  (5) The 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.

• Marginal note:Two or more accused

  (6) If 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.

• Marginal note:Convening of court martial

  (7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.

Marginal note:Acting Court Martial Administrator

165.2 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

Military Judges

Marginal note:Appointment

• 165.21 (1) The 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.

• Marginal note:Removal for cause

  (2) A 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.

• Marginal note:Powers of Inquiry Committee

  (2.1) The Inquiry Committee is deemed to have the powers of a court martial.

• Marginal note:Ceasing to hold office

  (3) A 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.

• Marginal note:Resignation

  (4) A 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.

Marginal note:Remuneration

• 165.22 (1) The rates and conditions of issue of pay of military judges shall be prescribed by the Treasury Board in regulations.

• Marginal note:Review of remuneration

  (2) The remuneration of military judges shall be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council.

Marginal note:Judicial duties and functions

• 165.23 (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

• Marginal note:Other duties and functions

  (2) In 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.

• Marginal note:Boards of inquiry

  (3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

Chief Military Judge

Marginal note:Chief Military Judge

165.24 The Governor in Council may designate a military judge to be the Chief Military Judge.

Marginal note:Duties and functions

165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

Marginal note:Acting Chief Military Judge

165.26 The Chief Military Judge may authorize any military judge to perform the duties and functions of the Chief Military Judge.

Marginal note:Delegation

165.27 The Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.

General Courts Martial

Marginal note:Jurisdiction

166 A 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.

Marginal note:Punishment limitation

166.1 A 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.

Marginal note:Composition

• 167 (1) A General Court Martial is composed of a military judge and a panel of five members.

• Marginal note:Rank of senior member

  (2) The senior member of the panel must be an officer of or above the rank of colonel.

• Marginal note:Rank for trial of officer

  (3) If the accused person is an officer, all of the members of the panel must be officers.

• Marginal note:Ranks for trial of brigadier-general or above

  (4) If 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.

• Marginal note:Rank for trial of colonel

  (5) If 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.

• Marginal note:Rank for trial of lieutenant-colonel

  (6) If 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.

• Marginal note:Rank for trial of non-commissioned member

  (7) If 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.

Marginal note:Ineligibility to serve

168 None of the following persons may sit as a member of the panel of a General Court Martial:

• (a) an officer or non-commissioned member who is a lawyer or notary;

• (b) a witness for the prosecution or the accused person;

• (c) the commanding officer of the accused person;

• (d) an officer or non-commissioned member appointed for the purposes of section 156;

• (e) an officer below the rank of captain;

• (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

• (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

169 [Repealed, 2008, c. 29, s. 10]

170 [Repealed, 2008, c. 29, s. 10]

171 [Repealed, 2008, c. 29, s. 10]

172 [Repealed, 2008, c. 29, s. 10]

Standing Courts Martial

Marginal note:Jurisdiction

173 A 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.

Marginal note:Composition

174 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

Marginal note:Punishment limitation

175 A 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.

176 [Repealed, 2008, c. 29, s. 12]

177 [Repealed, 2008, c. 29, s. 12]

178 [Repealed, 2008, c. 29, s. 12]

Powers

Marginal note:Courts martial

• 179 (1) A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.

• Marginal note:Military judges

  (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

Admission to Courts Martial

Marginal note:Trials public

• 180 (1) Subject 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.

• Marginal note:Exception

  (2) A 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 necessary

  • (a) in the interests of public safety, defence or public morals;

  • (b) for the maintenance of order or the proper administration of military justice; or

  • (c) to prevent injury to international relations.

• Marginal note:Witnesses

  (3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.

• Marginal note:Clearing court

  (4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.

Rules of Evidence

Marginal note:Regulations to establish rules

• 181 (1) Subject 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.

• Marginal note:Publication

  (2) No 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.

Marginal note:Admission of documents and records

• 182 (1) Such 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.

• Marginal note:Statutory declarations admissible, subject to conditions

  (2) A 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:

  • (a) 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;

  • (b) 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; and

  • (c) at 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.

Witnesses at Courts Martial

Marginal note:Procurement of attendance of witnesses

• 183 (1) The 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.

• Marginal note:Exception

  (1.1) Nothing 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.

• Marginal note:Procurement of attendance in exceptional cases

  (2) Where 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.

• Marginal note:Reimbursement of accused for fees and expenses

  (3) Where 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.

• Marginal note:Rights of accused preserved

  (4) Nothing 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.

Evidence on Commission

Marginal note:Appointment of commissioner to take evidence

• 184 (1) The 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 martial

  • (a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

  • (b) who is absent from the country in which the trial is held; or

  • (c) whose attendance is not readily obtainable for a good and sufficient reason.

• Marginal note:Admissibility of commission evidence

  (2) The 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.

• Marginal note:Power to require personal attendance of witness

  (3) Where, 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.

• Marginal note:Representation, examination and cross-examination before commissioner

  (4) At 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.

Marginal note:Copy to accused

185 The 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).

Objections

Marginal note:Objections

• 186 (1) When 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.

• Marginal note:Replacements

  (2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.

Preliminary Proceedings

Marginal note:Preliminary proceedings

187 At 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.

Amendment of Charges

Marginal note:Amendment if defence not prejudiced

• 188 (1) Where 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.

• Marginal note:Adjournment on amendment of charge

  (2) Where 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.

• Marginal note:Minute of amendment

  (3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.

Adjournments

Marginal note:Adjournment

189 A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.

Views

Marginal note:Authority for viewing

190 A court martial may view any place, thing or person.

Decisions of General Court Martial

Marginal note:Questions of law

191 The 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.

Marginal note:Plea of guilty

191.1 At 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.

Marginal note:Decision of panel

• 192 (1) The 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.

• Marginal note:Decision

  (2) A 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.

Marginal note:Disagreement of panel

• 192.1 (1) If 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.

• Marginal note:Dissolution of court martial

  (2) If 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.

Marginal note:Sentence

193 The military judge presiding at a General Court Martial determines the sentence.

Similar Offences

Marginal note:Similar offences may be considered in imposing sentence

• 194 (1) A 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.

• Marginal note:Restriction

  (2) If 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.

Pronouncement of Findings and Sentence

Marginal note:Manner and effective date of pronouncement

195 The 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.

Death or Incapacity

Marginal note:Death or incapacity to continue of judge

• 196 (1) Where 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.

• Marginal note:When finding not pronounced

  (2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge

  • (a) in the case of a General Court Martial, may order that the court martial

    • (i) continue from the stage at which it was when it was deemed to be adjourned, or

    • (ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and

  • (b) in 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.

• Marginal note:Adjudications and evidence

  (3) In the case of a court martial continued under subparagraph (2)(a)(i),

  • (a) 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; and

  • (b) if 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.

• Marginal note:When finding pronounced

  (4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.

Marginal note:Dissolution

• 196.1 (1) If, 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.

• Marginal note:Illness of accused

  (2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.

• Marginal note:Unfit to stand trial

  (3) Where 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.

• Marginal note:Effect of dissolution

  (4) Where a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.

DIVISION 6.1Forensic DNA Analysis

Marginal note:Definitions

196.11 The definitions in this section apply in this Division.

Commissioner

commissaire

Commissioner means the Commissioner of the Royal Canadian Mounted Police. (commissaire)

designated offence

infraction désignée

designated offence means a primary designated offence or a secondary designated offence. (infraction désignée)

DNA

ADN

DNA means deoxyribonucleic acid. (ADN)

DNA profile

profil d’identification génétique

DNA profile means the results of forensic DNA analysis. (profil d’identification génétique)

forensic DNA analysis

analyse génétique

forensic DNA analysis

• (a) in 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; and

• (b) in 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. (analyse génétique)

peace officer

agent de la paix

peace officer means

• (a) a 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; or

• (b) an 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. (agent de la paix)

prescribed form

formulaire réglementaire

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

primary designated offence

infraction primaire

primary designated offence means

• (a) 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;

• (a.1) 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; and

• (b) an 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. (infraction primaire)

secondary designated offence

infraction secondaire

secondary designated offence means

• (a) an 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;

• (b) an offence under any of the following provisions of this Act:

  • (i) paragraph 77(a) (violence to person bringing materiel to forces),

  • (ii) section 79 (mutiny with violence),

  • (iii) section 84 (striking a superior officer),

  • (iv) paragraph 87(b) (violence while in custody),

  • (v) section 95 (striking a subordinate),

  • (vi) paragraph 107(a) (endangering a person on an aircraft), or

  • (vii) section 127 (handling of dangerous substances); and

• (c) an 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). (infraction secondaire)

Marginal note:Information for DNA warrant

• 196.12 (1) A 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 believe

  • (a) that a designated offence has been committed;

  • (b) that a bodily substance has been found or obtained

    • (i) at the place where the offence was committed,

    • (ii) on or within the body of the victim of the offence,

    • (iii) on anything worn or carried by the victim at the time the offence was committed, or

    • (iv) on or within the body of any person or thing or at any place associated with the commission of the offence;

  • (c) that the person subject to the Code of Service Discipline was a party to the offence; and

  • (d) that 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.

• Marginal note:Criteria

  (2) In considering whether to issue the warrant, the military judge shall have regard to all relevant matters, including

  • (a) the nature of the offence and the circumstances surrounding its commission; and

  • (b) whether there is

    • (i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

    • (ii) another 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.

Marginal note:Telewarrants

• 196.13 (1) If 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.

• Marginal note:Contents of information

  (2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

  • (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

  • (b) a statement as to any prior application for a warrant under this section.

• Marginal note:Oath in writing

  (3) If 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.

• Marginal note:Information filed with Court Martial Administrator

  (4) The 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.

• Marginal note:Formalities respecting warrant and facsimiles

  (5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

  • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

  • (b) 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; and

  • (c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

• Marginal note:Issuance of warrant — telecommunication in written form

  (6) When a military judge issues a warrant by a means of telecommunication in written form,

  • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

  • (b) 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);

  • (c) the peace officer shall procure another facsimile of the warrant; and

  • (d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

• Marginal note:Proof of authorization

  (7) In 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.

• Marginal note:Duplicates and facsimiles acceptable

  (8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

Marginal note:Order — primary designated offences

• 196.14 (1) A 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.

• Marginal note:Order — primary designated offences

  (2) A 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.

• Marginal note:Order — persons found not responsible and secondary designated offences

  (3) A 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 to

  • (a) a 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; or

  • (b) a 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.

• Marginal note:Order to offender

  (4) When 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.

196.15 [Repealed, 2007, c. 22, s. 5]

Marginal note:Timing of order

• 196.16 (1) The 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.

• Marginal note:Hearing by new court martial

  (2) If the court martial does not consider the matter at that time,

  • (a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;

  • (b) 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; and

  • (c) for 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.

Marginal note:Failure to appear

• 196.161 (1) If 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.

• Marginal note:Warrant in force

  (2) The 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.

Marginal note:When collection to take place

• 196.17 (1) Samples of bodily substances shall be taken as authorized under section 196.14

  • (a) at the place, day and time set out in an order made under subsection 196.14(4) or as soon as feasible afterwards; or

  • (b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.

• Marginal note:When collection to take place

  (1.1) Samples of bodily substances shall be taken as authorized under section 196.24

  • (a) at the place, day and time set out in an order made under subsection 196.24(4) or as soon as feasible afterwards; or

  • (b) in any other case, as soon as feasible after the authorization is granted.

• Marginal note:When collection to take place

  (1.2) If 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 taken

  • (a) when the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; or

  • (b) as soon as feasible after the person appears at the place set out in the order if no warrant is issued.

• Marginal note:Appeal

  (1.3) Subsections (1) to (1.2) apply even if the order or authorization to take the samples of bodily substances is appealed.

• Marginal note:Collection of samples

  (2) A 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.

• Marginal note:Who collects samples

  (3) The 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.

Marginal note:Report of peace officer

• 196.18 (1) A 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 with

  • (a) the 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; or

  • (b) the Court Martial Administrator, in the case of an order made by a court martial under section 196.14.

• Marginal note:Contents of report

  (2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.

• Marginal note:Copy of report

  (2.1) The 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.

• Marginal note:Unexecuted telewarrant

  (3) If 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.

Marginal note:No criminal or civil liability

196.19 No 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.

Marginal note:Investigative procedures

• 196.2 (1) A 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:

  • (a) the plucking of individual hairs, including the root sheath;

  • (b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

  • (c) the taking of blood by pricking the skin surface with a sterile lancet.

• Marginal note:Terms and conditions

  (2) The 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.

• Marginal note:Fingerprints

  (3) A 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.

Marginal note:Duty to inform

• 196.21 (1) Before 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 of

  • (a) the contents of the warrant or order;

  • (b) the nature of the investigative procedures by means of which the samples are to be taken;

  • (c) the purpose of taking the samples;

  • (d) 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; and

  • (e) in 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.

• Marginal note:Detention of person

  (2) A 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.

• Marginal note:Respect of privacy

  (3) A 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.

Marginal note:Verification

• 196.22 (1) Before 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.

• Marginal note:DNA profile in data bank

  (2) If 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 shall

  • (a) confirm 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; and

  • (b) transmit 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.

• Marginal note:DNA profile not in data bank

  (3) If 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 Commissioner

  • (a) any bodily substances taken; and

  • (b) a copy of the order or authorization and any other information prescribed by regulations made under the DNA Identification Act.

Marginal note:Destruction of bodily substances, etc.

• 196.23 (1) 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 after

  • (a) the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;

  • (b) the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; or

  • (c) the 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.

• Marginal note:Exception

  (2) A 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.

• Marginal note:Destruction of bodily substances, etc., voluntarily given

  (3) Bodily 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.

Marginal note:Collection of additional bodily substances

• 196.24 (1) A 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 if

  • (a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 196.14; or

  • (b) the 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.

• Marginal note:Reasons

  (2) The 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.

• Marginal note:For greater certainty

  (3) For 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.

• Marginal note:Persons not in custody

  (4) If 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.

Marginal note:Review by Director of Military Prosecutions

• 196.241 (1) On 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.

• Marginal note:Clerical error

  (2) If the Director of Military Prosecutions is of the opinion that the defect is due to a clerical error, the Director shall

  • (a) apply, ex parte, to the military judge who made the order, or to another military judge, to have it corrected; and

  • (b) transmit a copy of the corrected order or authorization, if any, to the Commissioner.

• Marginal note:Substantive defect

  (3) If 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.

• Marginal note:No defect

  (4) If 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.

Marginal note:Order denying access to information used to obtain a warrant

• 196.25 (1) A 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 that

  • (a) the 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; and

  • (b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

• Marginal note:Reasons

  (2) For 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 disclosure

  • (a) if disclosure of the information would

    • (i) compromise the identity of a confidential informant,

    • (ii) compromise the nature and extent of an ongoing investigation,

    • (iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

    • (iv) prejudice the interests of an innocent person; and

  • (b) for any other sufficient reason.

• Marginal note:Procedure

  (3) If 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).

• Marginal note:Application for variance of order

  (4) An 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.

DIVISION 6.2Identification of Accused Persons and Offenders

Marginal note:Meaning of designated offence

196.26 In this Division, designated offence means an offence under any of the following provisions of this Act:

• (a) paragraphs 75(a) to (d) (offences related to security);

• (b) paragraphs 77(a) and (d) to (i) (offences related to operations);

• (c) section 78 (spying for the enemy);

• (d) section 79 (mutiny with violence);

• (e) section 80 (mutiny without violence);

• (f) paragraphs 81(a) and (b) (offences related to mutiny);

• (g) section 84 (striking or offering violence to a superior officer);

• (h) paragraphs 87(a) to (c) (resisting arrest or custody);

• (i) section 95 (abuse of subordinates);

• (j) section 100 (setting free without authority or allowing or assisting escape);

• (k) section 101 (escape from custody);

• (l) section 101.1 (failure to comply with conditions);

• (m) section 102 (hindering arrest or confinement or withholding assistance);

• (n) paragraphs 111(1)(a) and (b) (improper driving of vehicles);

• (o) section 113 (causing fires);

• (p) section 114 (stealing);

• (q) section 115 (receiving);

• (r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

• (s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

• (t) section 118 (offences in relation to tribunals);

• (u) section 118.1 (failure to appear or attend);

• (v) section 119 (false evidence);

• (w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

• (x) section 127 (negligent handling of dangerous substances);

• (y) section 128 (conspiracy); or

• (z) section 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.

Marginal note:Fingerprints and photographs

• 196.27 (1) Any 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.

• Marginal note:Use of force

  (2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

• Marginal note:Publication

  (3) The 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.

Marginal note:No liability for acting under this Division

196.28 No 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).

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 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 delay

• (a) if the person is tried by summary trial in respect of that charge; or

• (b) on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

DIVISION 7Mental Disorder

Interpretation

Marginal note:Definitions

197 For the purposes of this Division,

appropriate province

appropriate province means

• (a) in respect of a court martial held in Canada, the province in which it is held, or

• (b) in 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; (province concernée)

assessment

assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; (évaluation)

medical practitioner

medical practitioner means a person who is entitled to practise medicine by the laws of a province; (médecin)

Review Board

Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code. (commission d’examen)

Fitness to Stand Trial

Marginal note:Presumption of fitness

• 198 (1) An 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.

• Marginal note:Court directs issue to be tried

  (2) Subject 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.

• Marginal note:Burden of proof

  (3) An 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.

• Marginal note:Order for assessment

  (4) Subject 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.

• Marginal note:Subsequent proceedings

  (5) A 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.

Marginal note:Postponing trial of issue

• 199 (1) Where 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.

• Marginal note:Issue not tried

  (2) Where 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.

Marginal note:Trial proceeds where accused fit to stand trial

• 200 (1) Where 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.

• Marginal note:Procedure where accused unfit to stand trial

  (2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall

  • (a) set aside any plea that has been made; and

  • (b) hold 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.

• Marginal note:Order for assessment

  (3) Subject 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.

Marginal note:Disposition

• 201 (1) Where 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:

  • (a) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

  • (b) by 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.

• Marginal note:Treatment not a condition

  (2) No 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.

Marginal note:Treatment disposition

• 202 (1) Where 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.

• Marginal note:Condition

  (2) No 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.

• Marginal note:Evidence required

  (3) The 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, that

  • (a) the accused person, at the time of the assessment, was unfit to stand trial;

  • (b) 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;

  • (c) 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; and

  • (d) the 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).

• Marginal note:Notice

  (3.1) A 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.

• Marginal note:Challenge by accused person

  (4) On 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.

• Marginal note:Exception

  (5) A 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.

• Marginal note:Definitions

  (6) In subsection (5), electro-convulsive therapy and psychosurgery have the meaning assigned by the regulations.

• Marginal note:Consent of hospital required for treatment

  (7) A 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.

• Marginal note:Consent of accused person not required for treatment

  (8) A 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.

Marginal note:Where Review Board or chairperson sends accused back to court martial

• 202.1 (1) Where 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.

• Marginal note:Convening court martial

  (2) On 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.

• Marginal note:Custody in hospital

  (3) Notwithstanding 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.

• Marginal note:Burden and standard of proof

  (4) In 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.

Marginal note:Accused person to remain in hospital

202.11 Notwithstanding 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.

Marginal note:Prima facie case

• 202.12 (1) If 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 trial

  • (a) not 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; or

  • (b) at 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.

• Marginal note:Extension of time for holding inquiry

  (1.1) Despite 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.

• Marginal note:Where prima facie case not made

  (2) If, 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.

Marginal note:Recommendation of Review Board

• 202.121 (1) The 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 if

  • (a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and

  • (b) on 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 that

    • (i) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, and

    • (ii) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Notice

  (2) If 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.

• Marginal note:Obligation of court martial

  (3) As 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.

• Marginal note:Inquiry may be conducted

  (4) Subject 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, that

  • (a) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; and

  • (b) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Power to order an assessment

  (5) Subject 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.

• Marginal note:Assessment order

  (6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

• Marginal note:Stay

  (7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

  • (a) on 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;

  • (b) that the accused does not pose a significant threat to the safety of the public; and

  • (c) that a stay is in the interests of the proper administration of justice.

• Marginal note:Proper administration of justice

  (8) In 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:

  • (a) the nature and seriousness of the alleged offence;

  • (b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;

  • (c) 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; and

  • (d) any other factor that the court martial considers relevant.

• Marginal note:Effect of stay

  (9) If 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.

Mental Disorder When Offence Committed

Marginal note:Defence of mental disorder

• 202.13 (1) No 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.

• Marginal note:Presumption

  (2) Every 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.

• Marginal note:Burden of proof

  (3) The 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.

• Marginal note:Assessment order

  (4) Subject 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.

Marginal note:Finding of not responsible on account of mental disorder

• 202.14 (1) If 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.

• Marginal note:Effects

  (2) Where 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, but

  • (a) the 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;

  • (b) 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;

  • (c) 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;

  • (d) [Repealed, 1998, c. 35, s. 51]

  • (e) the finding may be considered in making an order under Division 3 in respect of that person;

  • (f) 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;

  • (g) the finding does not include a finding or determination respecting civil liability; and

  • (h) the 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.

• Marginal note:Finding not previous conviction

  (3) A 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.

Marginal note:Disposition hearing

• 202.15 (1) Where 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.

• Marginal note:Assessment order

  (2) Subject 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.

Marginal note:Disposition

• 202.16 (1) Where 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:

  • (a) 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;

  • (b) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

  • (c) by 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.

• Marginal note:Treatment not a condition

  (2) No 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.

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports

Marginal note:Conditions for custody

• 202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

  • (a) the 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;

  • (b) 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; or

  • (c) the 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).

• Marginal note:Report of medical practitioner in writing

  (2) For 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.

• Marginal note:No treatment order on assessment

  (3) No 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.

Marginal note:No custody or release orders during assessment

• 202.18 (1) During 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.

• Marginal note:Variation of assessment order

  (2) Subject 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.