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

Marginal note:Conviction of offence in circumstances involving lower punishment

135. A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

Marginal note:Powers on service trial of civil offences

136. Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.

Marginal note:Offence charged, attempt proved

• 137. (1) Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of the attempt.

• Marginal note:Attempt charged, full offence proved

  (2) Where, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be convicted of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

• Marginal note:Conviction a bar

  (3) An accused person who is convicted under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he was charged with attempting to commit.

Marginal note:Where tribunal may make special finding of guilty

138. Where a service tribunal concludes that

• (a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and

• (b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,

the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars.

Marginal note:Scale of punishments

• 139. (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

  • (a) imprisonment for life;

  • (b) imprisonment for two years or more;

  • (c) dismissal with disgrace from Her Majesty’s service;

  • (d) imprisonment for less than two years;

  • (e) dismissal from Her Majesty’s service;

  • (f) detention;

  • (g) reduction in rank;

  • (h) forfeiture of seniority;

  • (i) severe reprimand;

  • (j) reprimand;

  • (k) fine; and

  • (l) minor punishments.

• Definition of “less punishment”

  (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression “less punishment” means any one or more of the punishments lower in the scale of punishments than the specified punishment.