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

Referral to Director of Military Prosecutions

Marginal note:Duty to refer
  •  (1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.

  • Marginal note:Exception

    (2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if

    • (a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and

    • (b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

  • 1998, c. 35, s. 42.

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred
  •  (1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.

  • 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 referred to the Court Martial Administrator.

  • R.S., 1985, c. N-5, s. 165;
  • 1992, c. 16, s. 2;
  • 1998, c. 35, s. 42.

Director of Military Prosecutions

Marginal note:Appointment
  •  (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Military Prosecutions.

  • Marginal note:Tenure of office and removal

    (2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

  • Marginal note:Powers of inquiry committee

    (2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

    • (a) the attendance, swearing and examination of witnesses;

    • (b) the production and inspection of documents;

    • (c) the enforcement of its orders; and

    • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

  • Marginal note:Re-appointment

    (3) The Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.

  • 1992, c. 16, s. 2;
  • 1998, c. 35, s. 42;
  • 2013, c. 24, s. 38.
Marginal note:Duties and functions

 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.

  • 1998, c. 35, s. 42.
Marginal note:Preferring charges
  •  (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

    • (a) prefer the charge; or

    • (b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

  • Marginal note:Withdrawing charges

    (2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

  • Marginal note:Effect of withdrawing charge

    (3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

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

 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

  • 1998, c. 35, s. 42.

 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

 The Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.

  • 1998, c. 35, s. 42.
Marginal note:Acting Director of Military Prosecutions

 The powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.

  • 1998, c. 35, s. 42.
Marginal note:Relationship to Judge Advocate General
  •  (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

  • Marginal note:General instructions

    (2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

  • Marginal note:Specific instructions

    (3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

  • Marginal note:Availability to public

    (4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

  • Marginal note:Exception

    (5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.

  • Marginal note:Copies to Minister

    (6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

  • 1998, c. 35, s. 42.

Court Martial Administrator

Marginal note:Appointment

 There shall be a person appointed to be the Court Martial Administrator.

  • 1998, c. 35, s. 42.
Marginal note:Duties
  •  (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

  • Marginal note:Other duties

    (2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

  • Marginal note:Relationship to Chief Military Judge

    (3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

  • 1998, c. 35, s. 42;
  • 2008, c. 29, s. 7.
Marginal note:Convening General Court Martial
  •  (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

    • (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

    • (b) an offence punishable under section 130 that is punishable by imprisonment for life; or

    • (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

  • Marginal note:Consent to be tried by Standing Court Martial

    (2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

  • Marginal note:Withdrawal of consent

    (3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.

  • 2008, c. 29, s. 8.
 
Date modified: