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

Marginal note:Finding of not responsible on account of mental disorder
  •  (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.

  • Marginal note:Effects

    (2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

    • (a) the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;

    • (b) any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;

    • (c) any service tribunal or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;

    • (d) [Repealed, 1998, c. 35, s. 51]

    • (e) the finding may be considered in making an order under Division 3 in respect of that person;

    • (f) the finding may be considered in determining, under section 249.13 or 249.14, whether to substitute, mitigate, commute or remit a punishment included in a sentence imposed against that person for any other offence;

    • (g) the finding does not include a finding or determination respecting civil liability; and

    • (h) the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

  • Marginal note:Finding not previous conviction

    (3) A finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions.

  • 1991, c. 43, s. 18;
  • 1998, c. 35, s. 51;
  • 2005, c. 25, s. 30;
  • 2007, c. 5, s. 3;
  • 2012, c. 1, ss. 152, 160.
Marginal note:Disposition hearing
  •  (1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay.

  • Marginal note:Assessment order

    (2) 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 this section, the court martial may make an order for an assessment of the accused person.

  • 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 202.15(1), 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 without conditions where, in the opinion of the court martial, the accused person is not a significant risk to the safety of the public;

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

    • (c) 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.

  • 1991, c. 43, s. 18;
  • 1997, c. 18, s. 133.

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports

Marginal note:Conditions for custody
  •  (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

    • (a) the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;

    • (b) custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; or

    • (c) the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e).

  • Marginal note:Report of medical practitioner in writing

    (2) For the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing.

  • Marginal note:No treatment order on assessment

    (3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment.

  • 1991, c. 43, s. 18;
  • 1998, c. 35, ss. 52(E), 92;
  • 2005, c. 22, s. 50.
Marginal note:No custody or release orders during assessment
  •  (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

  • Marginal note:Variation of assessment order

    (2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances.

  • 1991, c. 43, s. 18;
  • 1998, c. 35, ss. 53, 92;
  • 2005, c. 22, s. 51.
Marginal note:Assessment report
  •  (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

  • Marginal note:Assessment report to be filed with court

    (2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.

  • Marginal note:Distribution of assessment report

    (3) Subject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.

  • Marginal note:Assessment report part of record

    (4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared.

  • 1991, c. 43, s. 18;
  • 2005, c. 22, s. 52.
Marginal note:Effective date of disposition

 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.

  • 1991, c. 43, s. 18;
  • 2005, c. 22, s. 53.
 
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