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

Act current to 2016-05-12 and last amended on 2015-06-01. Previous Versions

Marginal note:Convening Standing Court Martial

 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

  • (a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or

  • (b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.

  • 2008, c. 29, s. 8.
Marginal note:Choice of accused
  •  (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.

  • Marginal note:Notification

    (2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

  • Marginal note:Failure to make choice

    (3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.

  • Marginal note:New choice — as of right

    (4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

  • Marginal note:New choice — with consent

    (5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

  • Marginal note:Two or more accused

    (6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.

  • Marginal note:Convening of court martial

    (7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.

  • 2008, c. 29, s. 8.
Marginal note:Acting Court Martial Administrator

 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

  • 1998, c. 35, s. 42.

Military Judges

Marginal note:Appointment
  •  (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.

  • Marginal note:Oath

    (2) Every military judge shall, before commencing the duties of office, take the following oath of office:

    I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

  • Marginal note:Removal for cause

    (3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Ceasing to hold office

    (4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

  • Marginal note:Resignation

    (5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

  • 1998, c. 35, s. 42;
  • 2011, c. 22, s. 2;
  • 2013, c. 24, s. 41.

Reserve Force Military Judges

Marginal note:Panel established
  •  (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who

    • (a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;

    • (b) has been a military judge;

    • (c) has presided at a Standing Court Martial or a Special General Court Martial; or

    • (d) has been a judge advocate at a court martial.

  • Marginal note:Reserve force military judge

    (2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

  • Marginal note:Oath

    (3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:

    I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

  • 1998, c. 35, s. 42;
  • 2013, c. 24, s. 41.
Marginal note:Removal from panel
  •  (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Automatic removal from panel

    (2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge attaining the age of 60 years.

  • Marginal note:Voluntary removal from panel

    (3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

  • 2013, c. 24, s. 41.
Marginal note:Chief Military Judge
  •  (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

  • Marginal note:Training

    (2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.

  • 2013, c. 24, s. 41.
Marginal note:Restriction on activities

 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.

  • 2013, c. 24, s. 41.

Duties and Immunity of Military Judges

Marginal note:Judicial duties and functions
  •  (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

  • Marginal note:Other duties and functions

    (2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.

  • Marginal note:Boards of inquiry

    (3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

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

 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

  • 2013, c. 24, s. 42.

Chief Military Judge

Marginal note:Chief Military Judge
  •  (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.

  • Marginal note:Rank

    (2) The Chief Military Judge holds a rank that is not less than colonel.

  • 1998, c. 35, s. 42;
  • 2013, c. 24, s. 43.
 
Date modified: