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

Act current to 2017-05-11 and last amended on 2015-06-01. Previous Versions

Offences Punishable by Ordinary Law

Marginal note:Service trial of civil offences
  •  (1) An act or omission

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

    • (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,

    is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

  • Marginal note:Punishment

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

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

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

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

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

    • (b) in any other case,

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

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

  • Marginal note:Code of Service Discipline applies

    (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).

  • Marginal note:Saving provision

    (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.

  • R.S., 1985, c. N-5, s. 130;
  • 1998, c. 35, ss. 33, 92.
Marginal note:Reference to Attorney General

 For the purposes of this Act, a reference in the definition analyst or qualified technician in subsection 254(1) of the Criminal Code to the “Attorney General” includes the Attorney General of Canada.

  • R.S., 1985, c. N-5, s. 131;
  • R.S., 1985, c. 27 (1st Supp.), s. 187.
Marginal note:Offences under law applicable outside Canada
  •  (1) An act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Division, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).

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

    (2) Subject to subsection (3), where a service tribunal finds a person guilty of an offence under subsection (1), the service tribunal shall impose the punishment in the scale of punishments that it considers appropriate, having regard to the punishment prescribed by the law applicable in the place where the act or omission occurred and the punishment prescribed for the same or a similar offence in this Act, the Criminal Code or any other Act of Parliament.

  • Marginal note:Application of Code of Service Discipline

    (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under subsection (2).

  • Marginal note:Saving provision

    (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 130 and to impose the punishment for that offence described in the section prescribing that offence.

  • Marginal note:Contravention of customs laws

    (5) Where an act or omission constituting an offence under subsection (1) contravenes the customs laws applicable in the place where the offence was committed, any officer appointed under the regulations for the purposes of this section may seize and detain any goods by means of or in relation to which the officer believes on reasonable grounds that the offence was committed and, if any person is convicted of the offence under subsection (1), the goods may, in accordance with regulations made by the Governor in Council, be forfeited to Her Majesty and may be disposed of as provided by those regulations.

  • R.S., 1985, c. N-5, s. 132;
  • 1998, c. 35, ss. 34, 92.

Conviction of Cognate Offence

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

  • Marginal note:Person charged with attempt to desert

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

  • R.S., c. N-4, s. 122.
Marginal note:Person charged with violent offence against officer
  •  (1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

  • Marginal note:Person charged with insubordinate behaviour

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

  • R.S., c. N-4, s. 122.
Marginal note:Conviction of offence in circumstances involving lower punishment

 A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

  • R.S., c. N-4, s. 122.
Marginal note:Powers on service trial of civil offences

 Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.

  • R.S., c. N-4, s. 122.
Marginal note:Offence charged, attempt proved
  •  (1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.

  • Marginal note:Attempt charged, full offence proved

    (2) If, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be found guilty of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

  • Marginal note:Conviction a bar

    (3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.

  • R.S., 1985, c. N-5, s. 137;
  • 1992, c. 16, s. 1;
  • 2013, c. 24, s. 18(E).
Marginal note:Where tribunal may make special finding of guilty

 Where a service tribunal concludes that

  • (a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and

  • (b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,

the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars.

  • R.S., c. N-4, s. 124.

Punishments

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

    • (a) imprisonment for life;

    • (b) imprisonment for two years or more;

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

    • (d) imprisonment for less than two years;

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

    • (f) detention;

    • (g) reduction in rank;

    • (h) forfeiture of seniority;

    • (i) severe reprimand;

    • (j) reprimand;

    • (k) fine; and

    • (l) minor punishments.

  • Definition of less punishment

    (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.

  • R.S., 1985, c. N-5, s. 139;
  • 1998, c. 35, s. 35.
 
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