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

Review by Military Judge

Marginal note:Hearing by military judge
  •  (1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

  • Marginal note:Applicable operational considerations

    (2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed.

  • R.S., 1985, c. N-5, s. 159;
  • R.S., 1985, c. 31 (1st Supp.), s. 52;
  • 1998, c. 35, s. 42.
Marginal note:Onus on Canadian Forces

 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.

  • 1998, c. 35, s. 42.
Marginal note:Justification for retention in custody

 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

  • (a) custody is necessary to ensure the person’s attendance before a service tribunal or a civil court to be dealt with according to law;

  • (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 justice; and

  • (c) any other just cause has been shown, 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.

  • 1998, c. 35, s. 42.
Marginal note:Onus on person in custody
  •  (1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.

  • Marginal note:Release on undertaking

    (2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.

  • 1998, c. 35, s. 42.
Marginal note:Release with or without undertaking
  •  (1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.

  • Marginal note:Variation of undertaking

    (2) The undertaking under which a person is released may be varied

    • (a) by direction of a military judge on application with reasonable notice being given; or

    • (b) with the written consent of the person and the Director of Military Prosecutions.

  • 1998, c. 35, s. 42.
Marginal note:Hearing may be adjourned

 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

  • 1998, c. 35, s. 42.
Marginal note:Alternate means of hearing
  •  (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

  • Marginal note:Representations and factors to be considered

    (2) In deciding whether to make the direction, the military judge shall take into account

    • (a) the location of the person in custody;

    • (b) the gravity of the offence;

    • (c) the circumstances under which the unit or element detaining the person in custody is deployed;

    • (d) the availability of counsel for the Canadian Forces and the person in custody;

    • (e) the limitations of available telecommunications devices;

    • (f) the time required to bring the person in custody and the person’s counsel before the military judge; and

    • (g) any other matter that the military judge considers relevant.

  • 1998, c. 35, s. 42.
Marginal note:Reasons

 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

  • 1998, c. 35, s. 42.

Duty of Director of Military Prosecutions

Marginal note:Review after 90 days

 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.

  • 1998, c. 35, s. 42.

Review by Court Martial Appeal Court

Marginal note:Review of direction
  •  (1) At any time before the commencement of a person’s trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.

  • Marginal note:Application of provisions

    (2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.

  • 1998, c. 35, s. 42.

DIVISION 4Commencement of Proceedings

Interpretation

Definition of commanding officer

 In this Division, commanding officer, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.

  • R.S., 1985, c. N-5, s. 160;
  • R.S., 1985, c. 31 (1st Supp.), s. 60;
  • 1998, c. 35, s. 42.

Laying of Charge

Marginal note:Laying of charge

 Proceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

  • R.S., 1985, c. N-5, s. 161;
  • 1998, c. 35, s. 42.
Marginal note:Referral to commanding officer

 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

  • 1998, c. 35, s. 42.

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

  • R.S., 1985, c. N-5, s. 162;
  • 1998, c. 35, s. 42;
  • 2008, c. 29, s. 3.

Right to Trial by Court Martial

Marginal note:Election

 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.

  • 1998, c. 35, s. 42.
Marginal note:Referral of charge

 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.

  • 1998, c. 35, s. 42.

DIVISION 5Summary Trials

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Division.

commanding officer

commandant

commanding officer, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160. (commandant)

superior commander

commandant supérieur

superior commander means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)

  • 1998, c. 35, s. 42.
 
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