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

Act current to 2017-10-13 and last amended on 2015-06-01. Previous Versions

AMENDMENTS NOT IN FORCE

  • — 2004, c. 15, s. 78

    • 78 The Act is amended by adding the following after section 273.7:

      PART V.2Authorizations

      Computer Systems and Networks

      • Ministerial authorization
        • 273.8 (1) The Minister may authorize in writing, either individually or by class, any public servant employed in the Department, or any person acting on behalf of the Department or the Canadian Forces who is performing duties relating to the operation, maintenance or protection of computer systems or networks of the Department or the Canadian Forces, to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any such computer system or network, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.

        • Authorization to Chief of Defence Staff

          (2) The Minister may authorize in writing the Chief of the Defence Staff to direct, either individually or by class, any officer or non-commissioned member to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any computer system or network of the Department or the Canadian Forces, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.

        • Conditions for authorization

          (3) The Minister may issue an authorization under subsection (1) or (2) only if satisfied that

          • (a) the interception is necessary to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain;

          • (b) the information to be obtained from the interception could not reasonably be obtained by other means;

          • (c) the consent of persons whose private communications may be intercepted cannot reasonably be obtained;

          • (d) satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain, will be used or retained; and

          • (e) satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.

        • Conditions in authorization

          (4) An authorization issued under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information contained in the private communications.

        • Effective period of authorization

          (5) An authorization issued under this section is valid for the period specified in it, and may be renewed for any period specified in the renewal. No authorization or renewal may be for a period longer than one year.

        • Variance or cancellation of authorization

          (6) An authorization issued under this section may be varied or cancelled in writing at any time.

        • Authorizations not statutory instruments

          (7) Authorizations issued under this section are not statutory instruments within the meaning of the Statutory Instruments Act.

        • Protection of persons

          (8) Notwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization issued under this section, or any person who assists such a person, is justified in taking any reasonable action necessary to give effect to the authorization.

        • Crown Liability and Proceedings Act

          (9) No action lies under section 18 of the Crown Liability and Proceedings Act in respect of

          • (a) the use or disclosure of any communication intercepted under the authority of an authorization issued under this section, if the use or disclosure of the communication is reasonably necessary to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain; or

          • (b) the disclosure of the existence of such a communication.

        • Exclusion of Part VI of Criminal Code

          (10) Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this section or in relation to a communication so intercepted.

      • Duties of Commissioner
        • 273.9 (1) The Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) has, in relation to the activities referred to in section 273.8, the following duties:

          • (a) to review activities carried out under an authorization issued under that section to ensure that they are in compliance with the law, and to report annually to the Minister on the review;

          • (b) in response to a complaint, to undertake any investigation that the Commissioner considers necessary; and

          • (c) to inform the Minister and, if the Commissioner considers it appropriate, the Attorney General of Canada, of any activity referred to in paragraph (a) that the Commissioner believes may not be in compliance with the law.

        • Certain provisions apply

          (2) For the purposes of subsection (1), subsections 273.63(3) to (6) apply to the Commissioner.

  • — 2013, c. 24, s. 12

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

      12 Subsection 30(4) of the Act is replaced by the following:

      • Reinstatement

        (4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.

      • Deeming provision

        (5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.

  • — 2013, c. 24, s. 13

    • 1998, c. 35, s. 10

      13 Subsection 35(1) of the Act is replaced by the following:

      • Rates and conditions of pay
        • 35 (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than those mentioned in paragraph 12(3)(a), shall be established by the Treasury Board.

  • — 2013, c. 24, s. 14

    • 1998, c. 35, s. 20

      14 Paragraph 66(1)(b) of the Act is replaced by the following:

      • (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 either punished in accordance with the sentence or discharged absolutely or on conditions.

  • — 2013, c. 24, s. 16

    • 1998, c. 35, s. 29

      16 Section 101.1 of the Act is replaced by the following:

      • Failure to comply with conditions

        101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8, 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.

  • — 2013, c. 24, s. 20

    • 1998, c. 35, s. 38

      20 Subsection 142(2) of the Act is replaced by the following:

      • Reduction in rank during detention

        (2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.

  • — 2013, c. 24, s. 22(1)

    • 1995, c. 39, s. 176; 1996, c. 19, s. 83.1
      • 22 (1) Subsection 147.1(1) of the Act is replaced by the following:

        • Prohibition order
          • 147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of

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

            • (b) an offence 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) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act; or

            • (d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.

  • — 2013, c. 24, s. 23

    • 1995, c. 39, s. 176
      • 23 (1) The portion of section 147.2 of the Act before paragraph (a) is replaced by the following:

        • Requirement to surrender

          147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer

      • 1995, c. 39, s. 176

        (2) Paragraphs 147.2(a) and (b) of the English version of the Act are replaced by the following:

        • (a) any thing the possession of which is prohibited by the order that is in the possession of the offender 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 offender on the commencement of the order.

      • 1995, c. 39, s. 176

        (3) The portion of section 147.2 of the English version of the Act after paragraph (b) is replaced by the following:

        The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.

  • — 2013, c. 24, s. 24

    • 24 Section 148 of the Act and the heading before it are replaced by the following:

      Intermittent Sentences

      • 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.

        • 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.

        • 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.

        • 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.

        • 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.

  • — 2013, c. 24, s. 27

    • 27 Section 155 of the Act is amended by adding the following after subsection (2):

      • 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.

  • — 2013, c. 24, s. 28

    • 1998, c. 35, s. 41
      • 28 (1) The portion of section 156 of the Act before paragraph (a) is replaced by the following:

        • 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):

        • 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.

  • — 2013, c. 24, s. 31

    • 31 The Act is amended by adding the following before section 159:

      • 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.

        • 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.

        • 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.

  • — 2013, c. 24, s. 32

    • 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.

  • — 2013, c. 24, s. 33

    • 33 The Act is amended by adding the following after section 159.9:

      Direction Cancelled

      • 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.

  • — 2013, c. 24, s. 34

    • 34 Section 161 of the Act is renumbered as subsection 161(1) and is amended by adding the following:

      • 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.

  • — 2013, c. 24, s. 35

    • 2008, c. 29, s. 4

      35 Subsection 163(1.1) of the Act is replaced by the following:

      • 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.

      • Waiver

        (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

  • — 2013, c. 24, s. 36

    • 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;

      • 2008, c. 29, s. 5

        (2) Subsection 164(1.1) of the Act is replaced by the following:

        • 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.

        • Waiver

          (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

        • 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.

      • 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):

        • 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.

  • — 2013, c. 24, s. 37

    • 1998, c. 35, s. 42

      37 Subsection 165(2) of the English version of the Act is replaced by the following:

      • 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 filed with the Court Martial Administrator.

  • — 2013, c. 24, s. 39

      • 39 (1) Section 165.12 of the Act is amended by adding the following after subsection (1):

        • Irregularity, informality or defect

          (1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.

      • 1998, c. 35, s. 42

        (2) Subsection 165.12(2) of the French version of the Act is replaced by the following:

        • Retrait de l’accusation

          (2) Le directeur des poursuites militaires peut retirer une mise en accusation déjà prononcée; toutefois, le retrait de la mise en accusation après le début du procès en cour martiale est subordonné à l’autorisation de celle-ci.

      • (3) Section 165.12 of the Act is amended by adding the following after subsection (3):

        • Effect of not preferring charge

          (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.

  • — 2013, c. 24, s. 40

    • 40 Section 165.19 of the Act is amended by adding the following after subsection (1):

      • Summoning of accused person

        (1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

  • — 2013, c. 24, s. 46

    • 46 The Act is amended by adding the following after section 165.37:

      • Costs payable

        165.38 If the military judges are represented at an inquiry of the Military Judges Compensation Committee, the costs of representation shall be paid in the amount and manner, and according to the terms and conditions, prescribed by regulations made by the Governor in Council.

  • — 2013, c. 24, s. 47

    • 1998, c. 35, s. 42
      • 47 (1) Subsections 167(2) and (3) of the Act are replaced by the following:

        • Rank of senior member

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

      • 1998, c. 35, s. 42

        (2) Subsections 167(5) to (7) of the Act are replaced by the following:

        • Rank for trial of colonel

          (5) If the accused person is of the rank of colonel, 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 lieutenant-colonel.

        • Rank for trial of lieutenant-colonel or lower-ranked officer

          (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.

        • Rank for trial of non-commissioned member

          (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.

  • — 2013, c. 24, s. 50

    • 1998, c. 35, s. 43; 2001, c. 41, s. 101

      50 Section 180 of the Act and the heading before it are replaced by the following:

      Admission to Courts Martial and Certain Proceedings Before Military Judges

      • Proceedings public
        • 180 (1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.

        • Exception

          (2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary

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

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

          • (c) to prevent injury to international relations, national defence or national security.

        • Witnesses

          (3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.

        • Clearing court

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

  • — 2013, c. 24, s. 51

    • 51 Section 181 of the Act is replaced by the following:

      • Rules of evidence
        • 181 (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.

        • Publication

          (2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.

  • — 2013, c. 24, s. 52(1)

      • 52 (1) Subsection 182(1) of the Act is replaced by the following:

        • Admission of documents and records
          • 182 (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules.

  • — 2013, c. 24, s. 53

    • 1998, c. 35, s. 45(2)

      53 Subsection 184(3) of the Act is replaced by the following:

      • Power to require personal attendance of witness

        (3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military 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.

  • — 2013, c. 24, s. 54

    • 54 The Act is amended by adding the following after section 194:

      Absconding Accused

      • Accused absconding during court martial
        • 194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.

        • Continuing or adjourning court martial

          (2) A military judge presiding at the court martial of an accused person who absconds may

          • (a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or

          • (b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.

        • Continuing court martial

          (3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.

        • Adverse inference

          (4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.

        • Accused not entitled to reopening

          (5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.

        • Counsel for accused person may continue to act

          (6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.

  • — 2013, c. 24, s. 56

    • 2000, c. 10, s. 1

      56 The portion of subsection 196.12(1) of the Act before paragraph (a) is replaced by the following:

      • Information for warrant to take bodily substances for forensic DNA analysis
        • 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 military justice to do so and that there are reasonable grounds to believe

  • — 2013, c. 24, s. 57

    • 2005, c. 22, s. 48

      57 Subsection 202.12(1.1) of the Act is replaced by the following:

      • 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 he or she 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 military justice.

  • — 2013, c. 24, s. 58

    • 2005, c. 22, s. 49
      • 58 (1) Paragraph 202.121(7)(c) of the Act is replaced by the following:

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

      • 2005, c. 22, s. 49

        (2) The portion of subsection 202.121(8) of the Act before paragraph (a) is replaced by the following:

        • Proper administration of military justice

          (8) To determine whether a stay of proceedings is in the interests of the proper administration of military justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

      • 2005, c. 22, s. 49

        (3) Paragraph 202.121(8)(b) of the Act is replaced by the following:

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

  • — 2013, c. 24, s. 59

    • 59 The Act is amended by adding the following after section 202.2:

      • Procedure at disposition hearing
        • 202.201 (1) A hearing by a court martial under subsection 200(2) or 202.15(1) to make or review a disposition in respect of an accused person shall be held in accordance with this section.

        • Hearing to be informal

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

        • 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.

        • Notice of hearing

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

        • Notice

          (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.

        • Order excluding public

          (6) 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.

        • Right to counsel

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

        • Assigning counsel

          (8) 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.

        • Right of accused person to be present

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

        • Removal or absence of accused person

          (10) 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).

        • Rights of parties at hearing

          (11) 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.

        • Witnesses

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

        • Video links

          (13) 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.

        • Determination of mental condition of accused person

          (14) 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 subsection 201(1) or 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.

        • Victim impact statement

          (15) 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 harm done to, or loss suffered by, the victim arising from the commission of the offence.

        • Procedure

          (16) 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.

        • Presentation of victim statement

          (17) 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.

        • Consideration by court martial

          (18) 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.

        • Copy of statement

          (19) 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.

        • Inquiry by court martial

          (20) 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.

        • Adjournment

          (21) 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 (18) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

        • Definition of victim

          (22) In this section, victim has the same meaning as in section 203.

  • — 2013, c. 24, s. 61

    • 2005, c. 22, s. 58

      61 Subsection 202.25(1) of the Act is replaced by the following:

      • Powers of Review Boards under Criminal Code
        • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

        • Application

          (1.1) For the application of subsection (1), a reference to the attorney general of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

  • — 2013, c. 24, s. 62

    • 62 The Act is amended by adding the following after section 202.26:

      Division 7.1Sentencing

      Interpretation

      • Definitions

        203 The following definitions apply in this Division.

        common-law partner

        common-law partner means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)

        victim

        victim, in relation to an offence, means

        • (a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

        • (b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1), the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants. (victime)

      Purposes and Principles of Sentencing by Service Tribunals

      • Fundamental purposes of sentencing
        • 203.1 (1) The fundamental purposes of sentencing are

          • (a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

          • (b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

        • Objectives

          (2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:

          • (a) to promote a habit of obedience to lawful commands and orders;

          • (b) to maintain public trust in the Canadian Forces as a disciplined armed force;

          • (c) to denounce unlawful conduct;

          • (d) to deter offenders and other persons from committing offences;

          • (e) to assist in rehabilitating offenders;

          • (f) to assist in reintegrating offenders into military service;

          • (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

          • (h) to provide reparations for harm done to victims or to the community; and

          • (i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

      • Fundamental principle of sentencing

        203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

      • Other sentencing principles

        203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:

        • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

          • (i) the offender, in committing the offence, abused their rank or other position of trust or authority,

          • (ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,

          • (iii) the offender, in committing the offence, abused their spouse or common-law partner,

          • (iv) the offender, in committing the offence, abused a person under the age of 18 years,

          • (v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

          • (vi) the offence was committed in a theatre of hostilities,

          • (vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

          • (viii) the offence was a terrorism offence;

        • (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

        • (c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;

        • (d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and

        • (e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

      • Abuse of persons under age of 18

        203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

      Facts Relevant to the Determination of a Sentence

      • Disputed facts
        • 203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

          • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

          • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

          • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

        • Panel

          (2) In the case of a General Court Martial, the court martial

          • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

          • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

      Victim Impact Statement

      • Duty to consider victim impact statement
        • 203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

        • Procedure

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

        • Presentation of statement

          (3) 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 them to read their statement or to present the statement in any other manner that the court martial considers appropriate.

        • Evidence concerning victim admissible

          (4) Whether or not a statement has been prepared and submitted, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.

      • Inquiry by court martial
        • 203.7 (1) As soon as feasible after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any 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.

        • Adjournment

          (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

      Absolute Discharge

      • Absolute discharge
        • 203.8 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

        • Effect of discharge

          (2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

          • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

          • (b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

          • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

        • References to section 730 of Criminal Code

          (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

      Restitution

      • Restitution order

        203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

        • (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

        • (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

        • (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

      • Enforcing restitution order

        203.91 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

      • Moneys found on offender

        203.92 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the offender’s possession and seized at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.

      • Notice of orders of restitution

        203.93 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

      • Civil remedy not affected

        203.94 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

      Passing of Sentence

      • Only one sentence to be passed

        203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

  • — 2013, c. 24, s. 63

    • 1998, c. 35, s. 57

      63 Subsection 204(1) of the Act is replaced by the following:

      • Commencement of term
        • 204 (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the service tribunal pronounces sentence on the offender.

  • — 2013, c. 24, s. 64

    • 1998, c. 35, s. 60

      64 Section 215 of the Act is replaced by the following:

      • Suspension of execution of punishment
        • 215 (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.

        • Conditions

          (2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

          • (a) to keep the peace and be of good behaviour;

          • (b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in any of paragraphs 215.2(1)(a) to (c); and

          • (c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

        • Other conditions

          (3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

        • Term if suspended punishment put into execution

          (4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the day on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following the pronouncement of the sentence.

      • Varying conditions

        215.1 On application by an offender, a condition imposed under subsection 215(3) may be varied, or another condition substituted for that condition, by

        • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

        • (b) a military judge, in the case of a condition imposed by a court martial; or

        • (c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.

      • Hearing into breach of conditions
        • 215.2 (1) 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 section 215 may be made by

          • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

          • (b) a military judge, in the case of a condition imposed by a court martial; or

          • (c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.

        • Revocation of suspension or changes to conditions

          (2) If a person referred to in any of paragraphs (1)(a) to (c) 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 suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

          • (b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.

      • Non-appearance of accused person

        215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.

  • — 2013, c. 24, s. 65

    • 1998, c. 35, s. 60

      65 Subsections 216(1) and (2) of the Act are replaced by the following:

      • Definition of suspending authority

        • 216 (1) In this section and section 217, suspending authority means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.

        • Suspension of imprisonment or detention

          (2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.

        • Notification

          (2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.

        • Committal after suspension

          (2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.

  • — 2013, c. 24, s. 66

    • 66 Subsection 217(1) of the Act is replaced by the following:

      • Review and remission
        • 217 (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

  • — 2013, c. 24, s. 67

    • 67 Section 218 of the Act is repealed.

  • — 2013, c. 24, s. 69

    • 69 Section 230 of the Act is amended by striking out “or” at the end of paragraph (f) and by adding the following after paragraph (g):

      • (h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

      • (i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

      • (j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

      • (k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

  • — 2013, c. 24, s. 70

    • 70 Section 230.1 of the Act is amended by striking out “or” at the end of paragraph (g) and by adding the following after paragraph (h):

      • (i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

      • (j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

      • (k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

      • (l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

  • — 2013, c. 24, s. 73

    • 73 The Act is amended by adding the following after section 249.21:

      • Appeal committee
        • 249.211 (1) The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.

        • Protection of committee members

          (2) No criminal or civil proceedings lie against a member of the committee 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 committee.

  • — 2013, c. 24, s. 74

    • 1998, c. 35, s. 82

      74 Subsection 249.25(1) of the Act is replaced by the following:

      • Restitution of property in case of conviction
        • 249.25 (1) A service tribunal that convicts or discharges absolutely a person of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

  • — 2013, c. 24, s. 75

    • 75 The Act is amended by adding the following after section 249.26:

      Criminal Record

      • Convictions for certain offences
        • 249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

          • (a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

            • (i) a severe reprimand,

            • (ii) a reprimand,

            • (iii) a fine not exceeding basic pay for one month, or

            • (iv) a minor punishment;

          • (b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

        • Criminal Records Act

          (2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

  • — 2013, c. 24, s. 99

    • 99 Subsection 269(1) of the Act is replaced by the following:

      • Limitation or prescription period
        • 269 (1) Unless an action or other proceeding is commenced within two years after the day on which the act, neglect or default complained of occurred, no action or other proceeding lies against Her Majesty or any person for

          • (a) an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority;

          • (b) any neglect or default in the execution of this Act or any regulations or military or departmental duty or authority; or

          • (c) an act or any neglect or default that is incidental to an act, neglect or default described in paragraph (a) or (b).

        • Prosecutions

          (1.1) A prosecution in respect of an offence — other than an offence under this Act, the Geneva Conventions Act or the Crimes Against Humanity and War Crimes Act — relating to an act, neglect or default described in subsection (1) may not be commenced after six months from the day on which the act, neglect or default occurred.

  • — 2013, c. 24, s. 103

    • R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 63)

      103 Subsection 299(2) of the Act is replaced by the following:

      • Certificate of Judge Advocate General

        (2) A certificate that appears to have been signed by the Judge Advocate General, or by any person whom the Judge Advocate General may appoint for that purpose, attesting that an officer or non-commissioned member was convicted or discharged absolutely under this Act of desertion or absence without leave or that the officer or non-commissioned member was or has been continuously absent without leave for six months or more, and setting out the date of commencement and, if applicable, the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence of the facts attested to in that certificate.

  • — 2013, c. 24, s. 105

    • 105 The Act is amended by adding the following after section 306:

      • Applications for employment

        307 Every person who uses or authorizes the use of an application form, for or relating to any of the following matters, that contains a question that by its terms requires the applicant to disclose a conviction for an offence referred to in paragraph 249.27(1)(a) or (b) is guilty of an offence and liable on summary conviction to a fine of not more than $500 or to imprisonment for a term of not more than six months, or to both:

        • (a) employment in any department set out in Schedule I to the Financial Administration Act;

        • (b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;

        • (c) enrolment in the Canadian Forces; or

        • (d) employment in or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

  • — 2014, c. 6, s. 21

    • 21 Section 197 of the National Defence Act is amended by adding the following in alphabetical order:

      disposition

      disposition means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4); (décision)

      significant threat to the safety of the public

      significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. (risque important pour la sécurité du public)

  • — 2014, c. 6, s. 22

    • 1991, c. 43, s. 18

      22 The portion of subsection 201(1) of the Act before paragraph (a) is replaced by the following:

      • Disposition
        • 201 (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, 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 necessary and appropriate in the circumstances:

  • — 2014, c. 6, s. 23

    • 2005, c. 22, s. 49
      • 23 (1) Subparagraph 202.121(1)(b)(ii) of the French version of the Act is replaced by the following:

        • (ii) d’autre part, il ne présente aucun risque important pour la sécurité du public.

      • 2005, c. 22, s. 49

        (2) Paragraph 202.121(4)(b) of the French version of the Act is replaced by the following:

        • b) d’autre part, il ne présente aucun risque important pour la sécurité du public.

      • 2005, c. 22, s. 49

        (3) Paragraph 202.121(7)(b) of the French version of the Act is replaced by the following:

        • b) qu’il ne présente aucun risque important pour la sécurité du public;

  • — 2014, c. 6, s. 24

    • 1991, c. 43, s. 18
      • 24 (1) The portion of subsection 202.16(1) of the Act before paragraph (b) is replaced by the following:

        • Disposition
          • 202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, 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 necessary and appropriate in the circumstances:

            • (a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;

      • 1991, c. 43, s. 18

        (2) Paragraph 202.16(1)(c) of the French version of the Act is replaced by the following:

        • c) la détention de l’accusé dans un hôpital ou un autre lieu approprié choisi par elle, sous réserve des modalités qu’elle estime indiquées.

  • — 2014, c. 6, s. 25

    • 25 The Act is amended by adding the following after section 202.16:

      High-Risk Accused

      • Application to court martial
        • 202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.

        • Application to Chief Military Judge

          (2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.

        • Restriction

          (3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.

        • Finding

          (4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and

          • (a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or

          • (b) the court martial is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

        • Definition of serious personal injury offence

          (5) For the purposes of subsection (4), serious personal injury offence means

          • (a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving

            • (i) the use or attempted use of violence against another person, or

            • (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or

          • (b) an offence referred to in section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code that is punishable under section 130 or an attempt to commit such an offence.

        • Factors to consider

          (6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including

          • (a) the nature and circumstances of the offence;

          • (b) any pattern of repetitive behaviour of which the offence forms a part;

          • (c) the accused person’s current mental condition;

          • (d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and

          • (e) the opinions of experts who have examined the accused person.

        • Detention of high-risk accused person

          (7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless

          • (a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and

          • (b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.

        • Assessment order

          (8) Subject to regulations, if the 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.

      • Referral to court martial for review
        • 202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.

        • Convening court martial

          (2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.

        • Review of finding by court martial

          (3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.

        • Finding not revoked

          (4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

        • Assessment order

          (5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.

  • — 2014, c. 6, s. 26

    • 26 The Act is amended by adding the following after section 202.2:

      • 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.

        • Hearing to be informal

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

        • 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.

        • Notice of hearing — parties

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

        • 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.

        • 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.

        • 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.

        • Right to counsel

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

        • 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.

        • 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.

        • 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).

        • 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.

        • Witnesses

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

        • 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.

        • 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.

        • 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 harm done to, or loss suffered by, the victim arising from the commission of the offence.

        • 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.

        • 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.

        • 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.

        • 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.

        • 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.

        • 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.

        • Definitions

          (23) The following definitions apply in this section.

          common-law partner

          common-law partner means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)

          victim

          victim, in relation to an offence, means

          • (a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

          • (b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement describing the harm done to, or loss suffered by, the person arising from the commission of the offence, the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants. (victime)

      • 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.

  • — 2014, c. 6, s. 27

    • 27 Subsection 202.24(3) of the Act is amended by adding the following after paragraph (b):

      • (c) determining under subsection 202.162(3) whether to revoke a finding that an accused person is a high-risk accused;

  • — 2014, c. 6, s. 28

    • 2005, c. 22, s. 58

      28 Subsection 202.25(1) of the Act is replaced by the following:

      • Powers of Review Board
        • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

        • References to Attorney General

          (1.1) For the purpose of subsection (1), a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

  • — 2014, c. 6, s. 29

    • 29 Section 230 of the Act is amended by adding the following after paragraph (e):

      • (e.1) the legality of a finding made under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

  • — 2014, c. 6, s. 30

    • 30 Section 230.1 of the Act is amended by adding the following after paragraph (f):

      • (f.01) the legality of a decision not to make a finding under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

  • — 2014, c. 6, s. 31

    • 1991, c. 43, s. 22
      • 31 (1) Subsection 233(1) of the Act is replaced by the following:

        • Automatic suspension of certain dispositions
          • 233 (1) Subject to subsection (2), if the disposition appealed from is a disposition made under section 202, the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

      • 1991, c. 43, s. 22

        (2) Paragraph 233(2)(a) of the Act is replaced by the following:

        • (a) by order, direct that the application of a disposition made under section 202 not be suspended pending the determination of the appeal;

        • (a.1) by order, direct that the application of a disposition made under paragraph 202.16(1)(a) be suspended pending the determination of the appeal;

  • — 2014, c. 6, s. 32

    • Bill C-15
      • 32 (1) Subsections (2) to (5) apply if Bill C-15, introduced in the 1st session of the 41st Parliament and entitled the Strengthening Military Justice in the Defence of Canada Act (in this section referred to as the “other Act”), receives royal assent.

      • (2) If section 59 of the other Act comes into force before section 26 of this Act, then, on the day on which that section 59 comes into force, that section 26 is replaced by the following:

        • 26 Section 202.201 of the Act is replaced by the following:

          • 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.

            • Hearing to be informal

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

            • 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.

            • Notice of hearing — parties

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

            • 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.

            • 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.

            • 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.

            • Right to counsel

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

            • 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.

            • 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.

            • 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).

            • 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.

            • Witnesses

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

            • 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.

            • 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.

            • 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 harm done to, or loss suffered by, the victim arising from the commission of the offence.

            • 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.

            • 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.

            • 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.

            • 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.

            • 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.

            • 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.

            • Definition of victim

              (23) In this section, victim has the same meaning as in section 203.

          • 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.

      • (3) If section 26 of this Act comes into force before section 59 of the other Act, then, on the day on which that section 26 comes into force, that section 59 is replaced by the following:

        • 59 Subsection 202.201(23) of the Act is replaced by the following:

          • Definition of victim

            (23) In this section, victim has the same meaning as in section 203.

      • (4) If section 59 of the other Act comes into force on the same day as section 26 of this Act, then that section 26 is deemed to have come into force before that section 59 and subsection (3) applies as a consequence.

      • (5) On the first day on which both section 61 of the other Act and section 28 of this Act are in force, subsection 202.25(1) of the National Defence Act is replaced by the following:

        • Powers of Review Board
          • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

          • References to Attorney General

            (1.1) For the purpose of subsection (1), a reference to the Attorney General of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code and a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of that Act shall be read as a reference to the Director of Military Prosecutions.

  • — 2015, c. 23, s. 32

    • 2010, c. 17, s. 45(2)

      32 Subsection 119.1(3) of the National Defence Act is replaced by the following:

      • 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) or (1.01) — 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.

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