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

Marginal note:Powers of military police

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

  • (a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

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

  • R.S., 1985, c. N-5, s. 156;
  • R.S., 1985, c. 31 (1st Supp.), ss. 49, 60;
  • 1998, c. 35, s. 41.
Marginal note:Issue of warrants
  •  (1) Subject to subsection (2), every commanding officer, and every officer to whom the power of trying a charge summarily has been delegated under subsection 163(4), may by a warrant under his hand authorize any person to arrest any other person triable under the Code of Service Discipline who

    • (a) has committed,

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

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

    a service offence.

  • Marginal note:Limitation

    (2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

  • Marginal note:Contents of warrants

    (3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

  • Marginal note:Saving provision

    (4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.

  • R.S., 1985, c. N-5, s. 157;
  • R.S., 1985, c. 31 (1st Supp.), ss. 50, 60.

Action following Arrest

Marginal note:Release from custody
  •  (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

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

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

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

    • (d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;

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

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

  • Marginal note:Retention in custody

    (2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

  • Marginal note:Duty to receive into service custody

    (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

  • Marginal note:Account in writing

    (4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

  • R.S., 1985, c. N-5, s. 158;
  • R.S., 1985, c. 31 (1st Supp.), ss. 51, 60;
  • 1998, c. 35, s. 42;
  • 2013, c. 24, s. 29.
Marginal note:Report of custody
  •  (1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

  • Marginal note:Contents

    (2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

  • Marginal note:Representations concerning release

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

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

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

  • Marginal note:Representations to be reduced to writing

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

  • Marginal note:Accompanying documents

    (5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.

  • 1998, c. 35, s. 42.

Initial Review

Marginal note:Review of report of custody
  •  (1) The custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.

  • Marginal note:Duty to release

    (2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1).

  • 1998, c. 35, s. 42.
Marginal note:Continuing duty to release

 If, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody.

  • 1998, c. 35, s. 42.
Marginal note:Duty to retain in custody if designated offence

 Notwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody.

  • 1998, c. 35, s. 42.
Marginal note:Duty to review where charge not laid

 If a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody.

  • 1998, c. 35, s. 42.
Marginal note:Release with or without conditions
  •  (1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

    • (a) remain under military authority;

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

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

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

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

  • Marginal note:Review

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

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

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

  • Marginal note:Powers

    (3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1).

  • 1998, c. 35, s. 42;
  • 2013, c. 24, s. 30(F).
 
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