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

Marginal note:Trial proceeds where accused fit to stand trial

• 200 (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.

Marginal note:Disposition

• 201 (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, 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 necessary and appropriate in the circumstances:

  • (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.

Marginal note:Treatment disposition

• 202 (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.

Marginal note:Where Review Board or chairperson sends accused back to court martial

• 202.1 (1) Where a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.

• Marginal note:Convening court martial

  (2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen.

• Marginal note:Custody in hospital

  (3) Notwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

• Marginal note:Burden and standard of proof

  (4) In proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

Marginal note:Accused person to remain in hospital

202.11 Notwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

Marginal note:Prima facie case

• 202.12 (1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial

  • (a) not later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; or

  • (b) at any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person.

• Marginal note:Extension of time for holding inquiry

  (1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if he or she is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of military justice.

• Marginal note:Where prima facie case not made

  (2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.

Marginal note:Recommendation of Review Board

• 202.121 (1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if

  • (a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and

  • (b) on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that

    • (i) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, and

    • (ii) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Notice

  (2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.

• Marginal note:Obligation of court martial

  (3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, the inquiry if the court martial determines that it is appropriate.

• Marginal note:Inquiry may be conducted

  (4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that

  • (a) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; and

  • (b) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Power to order an assessment

  (5) Subject to the regulations, if 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 a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.

• Marginal note:Assessment order

  (6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

• Marginal note:Stay

  (7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

  • (a) on the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;

  • (b) that the accused does not pose a significant threat to the safety of the public; and

  • (c) that a stay is in the interests of the proper administration of military justice.

• Marginal note:Proper administration of military justice

  (8) To determine whether a stay of proceedings is in the interests of the proper administration of military justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

  • (a) the nature and seriousness of the alleged offence;

  • (b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of military justice;

  • (c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and

  • (d) any other factor that the court martial considers relevant.

• Marginal note:Effect of stay

  (9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.

Mental Disorder When Offence Committed

Marginal note:Defence of mental disorder

• 202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

• Marginal note:Presumption

  (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

• Marginal note:Burden of proof

  (3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.

• Marginal note:Assessment order

  (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 was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.