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

Marginal note:Procedure at disposition hearing

• 202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

• Marginal note:Hearing to be informal

  (2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

• Marginal note:Interested person may be party

  (3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.

• Marginal note:Notice of hearing — parties

  (4) The court martial shall give notice of the hearing to the parties.

• Marginal note:Notice of hearing — victim

  (5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.

• Marginal note:Notice of release from custody and intended place of residence

  (6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release and the accused person’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.

• Marginal note:Order excluding public

  (7) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.

• Marginal note:Right to counsel

  (8) The accused person or any other party has the right to be represented by counsel.

• Marginal note:Assigning counsel

  (9) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.

• Marginal note:Right of accused person to be present

  (10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

• Marginal note:Removal or absence of accused person

  (11) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:

  • (a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;

  • (b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or

  • (c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).

• Marginal note:Rights of parties at hearing

  (12) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted in writing to the court martial.

• Marginal note:Witnesses

  (13) A party may not compel the attendance of witnesses, but may request the court martial to do so.

• Marginal note:Video links

  (14) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.

• Marginal note:Determination of mental condition of accused person

  (15) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement.

• Marginal note:Victim impact statement

  (16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.

• Marginal note:Procedure

  (17) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

• Marginal note:Presentation of victim statement

  (18) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate.

• Marginal note:Consideration by court martial

  (19) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of making or reviewing the disposition.

• Marginal note:Copy of statement

  (20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.

• Marginal note:Inquiry by court martial

  (21) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

• Marginal note:Adjournment

  (22) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

• (23) [Repealed, 2019, c. 15, s. 65]

Marginal note:Additional conditions — safety and security

202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

• (a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

• (b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

Marginal note:Status quo pending Review Board’s hearing

• 202.21 (1) Where a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201, 202 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board.

• Marginal note:Variation of order

  (2) Notwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board.

• Marginal note:Subsequent court martial order takes precedence

  (3) Pending a disposition by the Review Board, where a court martial

  • (a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person; or

  • (b) imposes a sentence of imprisonment or detention on the accused person, that sentence takes precedence over any prior disposition made under paragraph 201(1)(b) or 202.16(1)(c).

• Marginal note:Disposition takes precedence over probation order

  (4) Where a disposition is made under paragraph 201(1)(b) or 202.16(1)(c) and the accused person is convicted or discharged conditionally under the Criminal Code by a civil court in respect of another offence but is not sentenced to a term of imprisonment in respect of that other offence, the disposition shall come into force and, notwithstanding any provision of the Criminal Code, takes precedence over any probation order made in respect of the offence.

Marginal note:Procedural irregularities

• 202.22 (1) Any procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby.

• Marginal note:Reasons for disposition and copies to be provided

  (2) After making a disposition in respect of an accused person under section 201, 202 or 202.16, a court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons.

• Marginal note:Transmittal of transcript to Review Board

  (3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Transmittal of transcript to Review Board

  (3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Order of committal

  (4) Where a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation.

Marginal note:Definition of justice

• 202.23 (1) In this section, justice means a justice as defined in section 2 of the Criminal Code.

• Marginal note:Arrest without warrant for contravention of disposition

  (2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person

  • (a) is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or

  • (b) has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.

• Marginal note:Accused person released subject to conditions

  (2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

• Marginal note:Continued detention

  (2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe

  • (a) that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to

    • (i) establish the identity of the accused person,

    • (ii) establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),

    • (iii) prevent the commission of an offence, or

    • (iv) prevent the accused person from doing anything referred to in paragraph (2)(a) or (b); or

  • (b) that the accused person is subject to a disposition or an assessment order of a Review Board of another province.

• Marginal note:Accused person brought before justice or commanding officer

  (2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

• Marginal note:Justice or commanding officer not available

  (3) If a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.

• Marginal note:Release of accused person

  (3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

• Marginal note:Notice

  (3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

• Marginal note:Order pending decision of Review Board

  (4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

• Marginal note:Powers of Review Board

  (5) Where a Review Board receives a notice pursuant to subsection (4), it may exercise the powers and shall perform the duties referred to in the Criminal Code in respect of the accused person as if the Review Board were conducting a review of a disposition.