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:Fingerprints and photographs
  •  (1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

  • Marginal note:Use of force

    (2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

  • Marginal note:Publication

    (3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

  • 2002, c. 13, s. 88.
Marginal note:No liability for acting under this Division

 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

  • 2002, c. 13, s. 88.
Marginal note:Destruction of fingerprints, photographs, etc.

 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay

  • (a) if the person is tried by summary trial in respect of that charge; or

  • (b) on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

  • 2002, c. 13, s. 88.

DIVISION 7Mental Disorder

Interpretation

Marginal note:Definitions

 For the purposes of this Division,

appropriate province

province concernée

appropriate province means

  • (a) in respect of a court martial held in Canada, the province in which it is held, or

  • (b) in respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person; (province concernée)

assessment

évaluation

assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; (évaluation)

medical practitioner

médecin

medical practitioner means a person who is entitled to practise medicine by the laws of a province; (médecin)

Review Board

commission d’examen

Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code. (commission d’examen)

  • R.S., 1985, c. N-5, s. 197;
  • 1991, c. 43, s. 18;
  • 1998, c. 35, s. 92.

Fitness to Stand Trial

Marginal note:Presumption of fitness
  •  (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial.

  • Marginal note:Court directs issue to be tried

    (2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial.

  • Marginal note:Burden of proof

    (3) An accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial.

  • Marginal note:Order for assessment

    (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person.

  • Marginal note:Subsequent proceedings

    (5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial.

  • R.S., 1985, c. N-5, s. 198;
  • 1991, c. 43, s. 18.
Marginal note:Postponing trial of issue
  •  (1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.

  • Marginal note:Issue not tried

    (2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried.

  • R.S., 1985, c. N-5, s. 199;
  • 1991, c. 43, s. 18.
Marginal note:Trial proceeds where accused fit to stand trial
  •  (1) Where the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen.

  • Marginal note:Procedure where accused unfit to stand trial

    (2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall

    • (a) set aside any plea that has been made; and

    • (b) hold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay.

  • Marginal note:Order for assessment

    (3) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person.

  • R.S., 1985, c. N-5, s. 200;
  • 1991, c. 43, s. 18;
  • 2005, c. 22, s. 61(F).
Marginal note:Disposition
  •  (1) Where a court martial makes a disposition pursuant to subsection 200(2), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

    • (a) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

    • (b) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

  • Marginal note:Treatment not a condition

    (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

  • R.S., 1985, c. N-5, s. 201;
  • 1991, c. 43, s. 18;
  • 1997, c. 18, s. 130.
Marginal note:Treatment disposition
  •  (1) Where the finding on trial of the issue is that an accused person is unfit to stand trial and the court martial has not made a disposition under section 201, the court martial may, on application by the prosecutor, by order, direct that treatment of the accused person be carried out for a specified period not exceeding sixty days, subject to such conditions as the court martial considers appropriate, and, where the accused person is not detained in custody, direct that the accused person submit to that treatment by the person or at the place specified in the order.

  • Marginal note:Condition

    (2) No disposition may be made under this section unless the court martial is satisfied, on the basis of evidence described in subsection (3), that a specific treatment should be administered to the accused person for the purpose of making the accused person fit to stand trial.

  • Marginal note:Evidence required

    (3) The evidence required by a court martial for the purposes of subsection (2) shall be a statement by a medical practitioner that the practitioner has made an assessment of the accused person and is of the opinion, based on the grounds specified, that

    • (a) the accused person, at the time of the assessment, was unfit to stand trial;

    • (b) the psychiatric treatment and any other related medical treatment specified by the practitioner will likely render the accused person fit to stand trial within a period not exceeding sixty days and that without that treatment the accused person is likely to remain unfit to stand trial;

    • (c) the risk of harm to the accused person from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

    • (d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (2), taking into consideration the opinions stated in paragraphs (b) and (c).

  • Marginal note:Notice

    (3.1) A court martial shall not make a disposition under this section unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

  • Marginal note:Challenge by accused person

    (4) On receipt of the notice referred to in subsection (3.1), an accused person may challenge an application of the prosecutor under this section, and may adduce any evidence for that purpose.

  • Marginal note:Exception

    (5) A court martial shall not direct, and no direction given pursuant to a disposition made under this section shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment prescribed in regulations.

  • Marginal note:Definitions

    (6) In subsection (5), electro-convulsive therapy and psychosurgery have the meaning assigned by the regulations.

  • Marginal note:Consent of hospital required for treatment

    (7) A court martial shall not make a disposition under this section without the consent of the person in charge of the hospital or place where the accused person is to be treated or of the person to whom responsibility for the treatment of the accused person is assigned by the court martial.

  • Marginal note:Consent of accused person not required for treatment

    (8) A court martial may direct that treatment of an accused person be carried out pursuant to a disposition made under this section without the consent of the accused person or a person who, according to the laws of the jurisdiction where the disposition is made, is authorized to consent for the accused person.

  • R.S., 1985, c. N-5, s. 202;
  • 1991, c. 43, s. 18;
  • 1997, c. 18, s. 131.
 
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