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

Act current to 2017-07-03 and last amended on 2015-06-01. Previous Versions

Summary Trials by Commanding Officers

Marginal note:Jurisdiction
  •  (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

    • (a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

    • (b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

    • (c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

    • (d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and

    • (e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

  • Marginal note:Limitation period

    (1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

  • Marginal note:Prohibition on presiding

    (2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if

    • (a) the commanding officer carried out or directly supervised the investigation of the offence;

    • (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

    • (c) the commanding officer laid the charge or caused it to be laid.

  • Marginal note:Sentences

    (3) Subject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

    • (a) detention for a period not exceeding thirty days;

    • (b) reduction in rank by one rank;

    • (c) severe reprimand,

    • (d) reprimand,

    • (e) a fine not exceeding basic pay for one month, and

    • (f) minor punishments.

  • Marginal note:Delegation

    (4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

    • (a) detention not exceeding fourteen days;

    • (b) severe reprimand;

    • (c) reprimand;

    • (d) a fine not exceeding basic pay for fifteen days; and

    • (e) minor punishments.

  • R.S., 1985, c. N-5, s. 163;
  • R.S., 1985, c. 31 (1st Supp.), ss. 53, 60;
  • 1991, c. 43, s. 14;
  • 1998, c. 35, s. 42;
  • 2008, c. 29, s. 4.
Marginal note:When no summary trial
  •  (1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    • (a) another officer who has jurisdiction to try the accused person by summary trial; or

    • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

  • Marginal note:Subsequent proceedings not precluded

    (2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

  • Marginal note:Charge may be referred

    (3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

  • 1998, c. 35, s. 42.

Summary Trial by Superior Commanders

Marginal note:Jurisdiction
  •  (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

    • (a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

    • (b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;

    • (c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

    • (d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and

    • (e) the superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

  • Marginal note:Limitation period

    (1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

  • Marginal note:Prohibition on presiding

    (2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if

    • (a) the superior commander carried out or directly supervised the investigation of the offence;

    • (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or

    • (c) the superior commander laid the charge or caused it to be laid.

  • Marginal note:Exception

    (3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.

  • Marginal note:Sentences

    (4) Subject to the conditions set out in Division 2 relating to punishments, a superior commander at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

    • (a) severe reprimand;

    • (b) reprimand; and

    • (c) fine.

  • R.S., 1985, c. N-5, s. 164;
  • R.S., 1985, c. 31 (1st Supp.), s. 60;
  • 1991, c. 43, s. 15;
  • 1998, c. 35, s. 42;
  • 2008, c. 29, s. 5.
Marginal note:When no summary trial
  •  (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    • (a) another officer who has jurisdiction to try the accused person by summary trial; or

    • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

  • Marginal note:Subsequent proceedings not precluded

    (2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

  • Marginal note:Charge may be referred

    (3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

  • 1998, c. 35, s. 42.
 
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