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

Act current to 2014-12-08 and last amended on 2014-12-06. Previous Versions

Marginal note:When no summary trial
  •  (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    • (a) another officer who has jurisdiction to try the accused person by summary trial; or

    • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

  • Marginal note:Subsequent proceedings not precluded

    (2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

  • Marginal note:Charge may be referred

    (3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

  • 1998, c. 35, s. 42.

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.