Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)
Full Document:
Assented to 2013-06-19
24. Section 148 of the Act and the heading before it are replaced by the following:
Intermittent Sentences
Marginal note:Imprisonment or detention
148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at the times specified in the order; and
(b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.
Marginal note:Application to vary intermittent sentence
(2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying
(a) to their commanding officer, in the case of a sentence imposed by summary trial; or
(b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.
Marginal note:New sentence of imprisonment or detention
(3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.
Marginal note:Hearing into breach of conditions
(4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or
(b) a military judge, in the case of a condition imposed by a court martial.
Marginal note:Consequences of breach
(5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may
(a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or
(b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.
Marginal note:R.S., c. 31 (1st Supp.), s. 47
25. The heading before section 150 and sections 150 and 151 of the Act are repealed.
Marginal note:1998, c. 35, s. 40
26. Paragraph (d) of the definition infraction désignée in section 153 of the French version of the Act is replaced by the following:
d) toute infraction d’organisation criminelle punissable aux termes de la présente loi;
27. Section 155 of the Act is amended by adding the following after subsection (2):
Marginal note:Limitations on power of arrest
(2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:
(a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to
(i) establish the person’s identity,
(ii) secure or preserve evidence of or relating to the offence, and
(iii) prevent the continuation or repetition of the offence or the commission of another offence; and
(b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.
Marginal note:1998, c. 35, s. 41
28. (1) The portion of section 156 of the Act before paragraph (a) is replaced by the following:
Marginal note:Powers of military police
156. (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may
(2) Section 156 of the Act is amended by adding the following after subsection (1):
Marginal note:Arrest without warrant — limitations
(2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.
Marginal note:1998, c. 35, s. 42
29. Subsection 158(3) of the Act is replaced by the following:
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 a member of the military police shall receive and keep a person under arrest who is committed to their custody.
Marginal note:1998, c. 35, s. 42
30. Subsection 158.6(2) of the French version of the Act is replaced by the following:
Marginal note:Révision
(2) L’ordonnance de libération, inconditionnelle ou sous condition, rendue par l’officier réviseur peut être révisée par le commandant qui a désigné celui-ci ou, lorsqu’il est lui-même commandant, par l’officier immédiatement supérieur devant lequel il est responsable en matière de discipline.
31. The Act is amended by adding the following before section 159:
Marginal note:Review of directions
158.7 (1) A military judge may, on application by counsel for the Canadian Forces or by a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):
(a) a direction that was reviewed under subsection 158.6(2);
(b) a direction that was made under subsection 158.6(3); and
(c) a direction that was made under this section.
Marginal note:Conditions
(2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.
Marginal note:Further applications
(3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.
Marginal note:1998, c. 35, s. 42
32. Paragraphs 159.2(b) and (c) of the Act are replaced by the following:
(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 military justice; and
(c) custody is necessary to maintain public trust in the administration of military justice, 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.
33. The Act is amended by adding the following after section 159.9:
Direction Cancelled
Marginal note:Regulations
159.91 A direction to retain a person in custody or impose conditions on their release is cancelled in the circumstances prescribed in regulations made by the Governor in Council.
34. Section 161 of the Act is renumbered as subsection 161(1) and is amended by adding the following:
Marginal note:Duty to act expeditiously
(2) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.
Marginal note:2008, c. 29, s. 4
35. Subsection 163(1.1) of the Act is replaced by the following:
Marginal note:Limitation periods
(1.1) A commanding officer may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.
Marginal note:Waiver
(1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).
Marginal note:1998, c. 35, s. 42
36. (1) Paragraph 164(1)(a) of the Act is replaced by the following:
(a) the accused person is an officer below the rank of colonel or a non-commissioned member above the rank of sergeant;
Marginal note:2008, c. 29, s. 5
(2) Subsection 164(1.1) of the Act is replaced by the following:
Marginal note:Limitation periods
(1.1) A superior commander may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.
Marginal note:Waiver
(1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).
Marginal note:Exceptions — military judge and rank
(1.3) Despite paragraph (1)(a), a superior commander may not try a military judge by summary trial and may only try an officer of the rank of lieutenant-colonel by summary trial if the superior commander is of or above the rank of colonel.
Marginal note:1998, c. 35, s. 42
(3) Subsection 164(3) of the Act is repealed.
(4) Section 164 of the Act is amended by adding the following after subsection (4):
Marginal note:Officer cadets
(5) A superior commander who passes sentence on an officer cadet may include, in addition to the punishments described in subsection (4), minor punishments.
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