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An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (S.C. 2008, c. 29)

Assented to 2008-06-18

An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act

S.C. 2008, c. 29

Assented to 2008-06-18

An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act

SUMMARY

This enactment amends certain provisions of the National Defence Act that govern the military justice system. The amendments, among other things, reduce the number of types of courts martial from four to two and permit an accused person, in certain circumstances, to choose the type of court martial that will be convened. The enactment also provides that certain decisions of the panel of a General Court Martial must be unanimous and clarifies the provision that deals with the period of liability with respect to summary trials under the Code of Service Discipline. It also makes a consequential amendment to the Geneva Conventions Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. N-5NATIONAL DEFENCE ACT

Marginal note:1993, c. 34, s. 91(F)

1. The definition “court martial” in subsection 2(1) of the National Defence Act is replaced by the following:

“court martial”

« cour martiale »

“court martial” includes a General Court Martial and a Standing Court Martial;

Marginal note:1998, c. 35, s. 21

2. Section 69 of the Act is replaced by the following:

Marginal note:When person is liable

  • 69. (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

  • Marginal note:Sections 130 and 132

    (2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.

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

3. Section 162 of the Act is replaced by the following:

Marginal note:Duty to act expeditiously

162. Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

4. Section 163 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Limitation period

    (1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

5. Section 164 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Limitation period

    (1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

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

6. Section 165.14 of the Act is repealed.

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

7. Subsection 165.19(1) of the Act is replaced by the following:

Marginal note:Duties

  • 165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

8. The Act is amended by adding the following after section 165.19:

Marginal note:Convening General Court Martial

  • 165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

    • (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

    • (b) an offence punishable under section 130 that is punishable by imprisonment for life; or

    • (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

  • Marginal note:Consent to be tried by Standing Court Martial

    (2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

  • Marginal note:Withdrawal of consent

    (3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.

Marginal note:Convening Standing Court Martial

165.192 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.

Marginal note:Choice of accused

  • 165.193 (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.

9. The Act is amended by adding the following after section 166:

Marginal note:Punishment limitation

166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

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

10. The heading before section 169 and sections 169 to 172 of the Act are repealed.

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

11. Section 173 of the Act is replaced by the following:

Marginal note:Jurisdiction

173. A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

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

12. Sections 175 to 178 of the Act are replaced by the following:

Marginal note:Punishment limitation

175. A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

Marginal note:1998, c. 35, s. 46

13. Section 187 of the Act is replaced by the following:

Marginal note:Preliminary proceedings

187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.

Marginal note:1998, c. 35, s. 46

14. The heading before section 191 and sections 191 to 193 of the Act are replaced by the following:

Decisions of General Court Martial

Marginal note:Questions of law

191. The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.

Marginal note:Plea of guilty

191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.

Marginal note:Decision of panel

  • 192. (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

  • Marginal note:Decision

    (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

Marginal note:Disagreement of panel

  • 192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.

  • Marginal note:Dissolution of court martial

    (2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.

Marginal note:Sentence

193. The military judge presiding at a General Court Martial determines the sentence.

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