Canadian Forces Provost Marshal

Marginal note:Appointment

• 18.3 (1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).

• Marginal note:Rank

  (2) The Provost Marshal holds a rank that is not less than colonel.

• Marginal note:Tenure of office and removal

  (3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal 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

  (4) 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:Reappointment

  (5) The Provost Marshal is eligible to be reappointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

18.4 The Provost Marshal’s responsibilities include

• (a) investigations conducted by any unit or other element under his or her command;

• (b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

• (c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

• (d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

Marginal note:General supervision

• 18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

• Marginal note:General instructions or guidelines

  (2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

• Marginal note:Specific instructions or guidelines

  (3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

• Marginal note:Availability to public

  (4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

• Marginal note:Exception

  (5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

Marginal note:Annual report

18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.

• Marginal note:Military judges

  (2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.

Marginal note:Grievances submitted by military judges

29.101 Despite subsection 29.1(1), a griev­ance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.

Marginal note:Final authority

29.11 The Chief of the Defence Staff is the final authority in the griev­ance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

• Marginal note:Reasons

  (2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if

  • (a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or

  • (b) the grievance was submitted by a military judge.

Marginal note:Delegation

• 29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that

  • (a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and

  • (b) a grievance submitted by a military judge may not be delegated.

• Marginal note:Conflict of interest

  (2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.

• Marginal note:Subdelegation

  (3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).

Military Grievances External Review Committee

• Marginal note:Reinstatement

  (4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.

• Marginal note:Deeming provision

  (5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.

Marginal note:Rates and conditions of pay

• 35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than those mentioned in paragraph 12(3)(a), shall be established by the Treasury Board.

• (b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.

Civil Defences

Marginal note:Rules and principles of civil courts applicable

72.1 All rules and principles that are followed from time to time in the civil courts and that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

Marginal note:Failure to comply with conditions

101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Definition of “tribunal”

• 118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.

Marginal note:Offence charged, attempt proved

• 137. (1) If 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 found guilty of the attempt.

• Marginal note:Attempt charged, full offence proved

  (2) If, 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 found guilty 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 found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.

• Marginal note:Reduction in rank during detention

  (2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.

Marginal note:Civil enforcement of fines

• 145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.

• Marginal note:Effect of filing order

  (2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.

Intermittent Sentences

Marginal note:Imprisonment or detention

• 148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

  • (a) that the sentence be served intermittently at the times specified in the order; and

  • (b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.

• Marginal note:Application to vary intermittent sentence

  (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying

  • (a) to their commanding officer, in the case of a sentence imposed by summary trial; or

  • (b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.

• Marginal note:New sentence of imprisonment or detention

  (3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.

• Marginal note:Hearing into breach of conditions

  (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by

  • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or

  • (b) a military judge, in the case of a condition imposed by a court martial.

• Marginal note:Consequences of breach

  (5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

  • (a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

  • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.

• d) toute infraction d’organisation criminelle punissable aux termes de la présente loi;

• Marginal note:Limitations on power of arrest

  (2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:

  • (a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to

    • (i) establish the person’s identity,

    • (ii) secure or preserve evidence of or relating to the offence, and

    • (iii) prevent the continuation or repetition of the offence or the commission of another offence; and

  • (b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.

• Marginal note:Duty to receive into service custody

  (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

• Marginal note:Révision

  (2) L’ordonnance de libération, inconditionnelle ou sous condition, rendue par l’officier réviseur peut être révisée par le commandant qui a désigné celui-ci ou, lorsqu’il est lui-même commandant, par l’officier immédiatement supérieur devant lequel il est responsable en matière de discipline.

Marginal note:Review of directions

• 158.7 (1) A military judge may, on application by counsel for the Canadian Forces or by a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):

  • (a) a direction that was reviewed under subsection 158.6(2);

  • (b) a direction that was made under subsection 158.6(3); and

  • (c) a direction that was made under this section.

• Marginal note:Conditions

  (2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.

• Marginal note:Further applications

  (3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.

• (b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of military justice; and

• (c) custody is necessary to maintain public trust in the administration of military justice, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

Direction Cancelled

Marginal note:Regulations

159.91 A direction to retain a person in custody or impose conditions on their release is cancelled in the circumstances prescribed in regulations made by the Governor in Council.

• Marginal note:Duty to act expeditiously

  (2) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.

• Marginal note:Limitation periods

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

• Marginal note:Waiver

  (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

• 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 filed with the Court Martial Administrator.

• Marginal note:Summoning of accused person

  (1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

Marginal note:Appointment

• 165.21 (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.

Reserve Force Military Judges

Marginal note:Panel established

• 165.22 (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.)

Marginal note:Removal from panel

• 165.221 (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.

Marginal note:Chief Military Judge

• 165.222 (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.

Marginal note:Restriction on activities

165.223 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.

Duties and Immunity of Military Judges

Marginal note:Immunity

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

Marginal note:Chief Military Judge

• 165.24 (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.

Marginal note:Delegation

165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.

Marginal note:Deputy Chief Military Judge

165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.

Marginal note:Power, duties and functions

165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.

Marginal note:Rules of practice and procedure

165.3 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

• (a) pre-trial conferences and other prelimi­nary proceedings;

• (b) the making of applications under section 158.7;

• (c) the bringing of persons before a military judge under section 159;

• (d) the scheduling of trials by court martial;

• (e) the minutes of proceedings of courts martial and other proceedings;

• (f) documents, exhibits or other things connected with any proceeding, including public access to them; and

• (g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.

Military Judges Inquiry Committee

Marginal note:Composition of Committee

• 165.31 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.

• Marginal note:Chairperson

  (2) The Chief Justice shall appoint one of the judges to act as Chairperson.

• Marginal note:Powers of inquiry committee

  (3) The inquiry committee has the same powers, rights and privileges — including 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:Inquiry required

• 165.32 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

• Marginal note:Other inquiry

  (2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.

• Marginal note:Examination and recommendation

  (3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.

• Marginal note:Notice to military judge

  (4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

• Marginal note:Inquiry held in public or private

  (5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.

• Marginal note:Counsel

  (6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.

• Marginal note:Recommendation to the Governor in Council

  (7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,

  • (a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of

    • (i) infirmity,

    • (ii) having been guilty of misconduct,

    • (iii) having failed in the due execution of his or her judicial duties, or

    • (iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or

  • (b) the military judge does not satisfy the physical and medical fitness standards appli­cable to officers.

• Marginal note:Report

  (8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

Military Judges Compensation Committee

Marginal note:Composition of Committee

• 165.33 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

  • (a) one person nominated by the military judges;

  • (b) one person nominated by the Minister; and

  • (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

• Marginal note:Tenure and removal

  (2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.

• Marginal note:Reappointment

  (3) A member is eligible to be reappointed for one further term.

• Marginal note:Absence or incapacity

  (4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

• Marginal note:Vacancy

  (5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

• Marginal note:Quorum

  (6) All three members of the compensation committee together constitute a quorum.

• Marginal note:Remuneration

  (7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

Marginal note:Mandate

• 165.34 (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

• Marginal note:Factors to be considered

  (2) In conducting its inquiry, the compensation committee shall consider

  • (a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

  • (b) the role of financial security of the judiciary in ensuring judicial independence;

  • (c) the need to attract outstanding candidates to the judiciary; and

  • (d) any other objective criteria that the committee considers relevant.

• Marginal note:Quadrennial inquiry

  (3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

• Marginal note:Postponement

  (4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

Marginal note:Other inquiries

• 165.35 (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1).

• Marginal note:Report

  (2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee.

• Marginal note:Continuance of duties

  (3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee.

Marginal note:Extension

165.36 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

Marginal note:Minister’s duties

• 165.37 (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

• Marginal note:Response

  (2) The Minister shall respond to a report within six months after receiving it.

Marginal note:Costs payable

165.38 If the military judges are represented at an inquiry of the Military Judges Compensation Committee, the costs of representation shall be paid in the amount and manner, and according to the terms and conditions, prescribed by regulations made by the Governor in Council.

• (d) a member of the military police;

Marginal note:Courts martial

• 179. (1) A court martial has the same powers, rights and privileges — including 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.

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

• 180. (1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.

• Marginal note:Exception

  (2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary

  • (a) in the interests of public safety or public morals;

  • (b) for the maintenance of order or the proper administration of military justice; or

  • (c) to prevent injury to international relations, national defence or national security.

• Marginal note:Witnesses

  (3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.

• Marginal note:Clearing court

  (4) For the purpose of any deliberation, a court martial or military judge, as the case may be, may cause the place where the proceedings are being held to be cleared.

Marginal note:Rules of evidence

• 181. (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.

• Marginal note:Publication

  (2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.

• Marginal note:Power to require personal attendance of witness

  (3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

Absconding Accused

Marginal note:Accused absconding during court martial

• 194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.

• Marginal note:Continuing or adjourning court martial

  (2) A military judge presiding at the court martial of an accused person who absconds may

  • (a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or

  • (b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.

• Marginal note:Continuing court martial

  (3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.

• Marginal note:Adverse inference

  (4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.

• Marginal note:Accused not entitled to reopening

  (5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.

• Marginal note:Counsel for accused person may continue to act

  (6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.

• (b) an officer or a non-commissioned member of the Canadian Forces who is

  • (i) a member of the military police, or

  • (ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.

Marginal note:Information for warrant to take bodily substances for forensic DNA analysis

• 196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of military justice to do so and that there are reasonable grounds to believe

• 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:Procedure at disposition hearing

• 202.201 (1) A hearing by a court martial under subsection 200(2) or 202.15(1) to make or review a disposition in respect of an accused person shall be held in accordance with this section.

• Marginal note:Hearing to be informal

  (2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

• Marginal note:Interested person may be party

  (3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.

• Marginal note:Notice of hearing

  (4) The court martial shall give notice of the hearing to the parties.

• Marginal note:Notice

  (5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.

• Marginal note:Order excluding public

  (6) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.

• Marginal note:Right to counsel

  (7) The accused person or any other party has the right to be represented by counsel.

• Marginal note:Assigning counsel

  (8) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.

• Marginal note:Right of accused person to be present

  (9) Subject to subsection (10), the accused person has the right to be present during the entire hearing.

• Marginal note:Removal or absence of accused person

  (10) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:

  • (a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;

  • (b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or

  • (c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).

• Marginal note:Rights of parties at hearing

  (11) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted in writing to the court martial.

• Marginal note:Witnesses

  (12) A party may not compel the attendance of witnesses, but may request the court martial to do so.

• Marginal note:Video links

  (13) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.

• Marginal note:Determination of mental condition of accused person

  (14) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under subsection 201(1) or section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement.

• Marginal note:Victim impact statement

  (15) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

• Marginal note:Procedure

  (16) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

• Marginal note:Presentation of victim statement

  (17) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate.

• Marginal note:Consideration by court martial

  (18) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of making or reviewing the disposition.

• Marginal note:Copy of statement

  (19) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.

• Marginal note:Inquiry by court martial

  (20) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

• Marginal note:Adjournment

  (21) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (18) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

• Definition of “victim”

  (22) In this section, “victim” has the same meaning as in section 203.

Marginal note:Powers of Review Boards under Criminal Code

• 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

• Marginal note:Application

  (1.1) For the application of subsection (1), a reference to the attorney general of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

Division 7.1Sentencing

Interpretation

Marginal note:Definitions

203. The following definitions apply in this Division.

“common-law partner”

« conjoint de fait »

“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

“victim”

« victime »

“victim”, in relation to an offence, means

• (a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

• (b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1), the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants.

Purposes and Principles of Sentencing by Service Tribunals

Marginal note:Fundamental purposes of sentencing

• 203.1 (1) The fundamental purposes of sentencing are

  • (a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

  • (b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

• Marginal note:Objectives

  (2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:

  • (a) to promote a habit of obedience to lawful commands and orders;

  • (b) to maintain public trust in the Canadian Forces as a disciplined armed force;

  • (c) to denounce unlawful conduct;

  • (d) to deter offenders and other persons from committing offences;

  • (e) to assist in rehabilitating offenders;

  • (f) to assist in reintegrating offenders into military service;

  • (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

  • (h) to provide reparations for harm done to victims or to the community; and

  • (i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

Marginal note:Fundamental principle of sentencing

203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Marginal note:Other sentencing principles

203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:

• (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

  • (i) the offender, in committing the offence, abused their rank or other position of trust or authority,

  • (ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,

  • (iii) the offender, in committing the offence, abused their spouse or common-law partner,

  • (iv) the offender, in committing the offence, abused a person under the age of 18 years,

  • (v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

  • (vi) the offence was committed in a theatre of hostilities,

  • (vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

  • (viii) the offence was a terrorism offence;

• (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• (c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;

• (d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and

• (e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

Marginal note:Abuse of persons under age of 18

203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Facts Relevant to the Determination of a Sentence

Marginal note:Disputed facts

• 203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

  • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

  • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

  • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

• Marginal note:Panel

  (2) In the case of a General Court Martial, the court martial

  • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

  • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

Victim Impact Statement

Marginal note:Duty to consider victim impact statement

• 203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

• Marginal note:Procedure

  (2) A victim’s statement must be prepared in the form, and submitted in accordance with the procedures, provided for by regulations made by the Governor in Council.

• Marginal note:Presentation of statement

  (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit them to read their statement or to present the statement in any other manner that the court martial considers appropriate.

• Marginal note:Evidence concerning victim admissible

  (4) Whether or not a statement has been prepared and submitted, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.

Marginal note:Inquiry by court martial

• 203.7 (1) As soon as feasible after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

• Marginal note:Adjournment

  (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

Absolute Discharge

Marginal note:Absolute discharge

• 203.8 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

• Marginal note:Effect of discharge

  (2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

  • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

  • (b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

  • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

• Marginal note:References to section 730 of Criminal Code

  (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

Restitution

Marginal note:Restitution order

203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

• (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

• (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

• (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

Marginal note:Enforcing restitution order

203.91 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Marginal note:Moneys found on offender

203.92 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the offender’s possession and seized at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.

Marginal note:Notice of orders of restitution

203.93 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

Marginal note:Civil remedy not affected

203.94 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

Passing of Sentence

Marginal note:Only one sentence to be passed

203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

Marginal note:Commencement of term

• 204. (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the service tribunal pronounces sentence on the offender.

Marginal note:Suspension of execution of punishment

• 215. (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.

• Marginal note:Conditions

  (2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

  • (a) to keep the peace and be of good behaviour;

  • (b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in any of paragraphs 215.2(1)(a) to (c); and

  • (c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

• Marginal note:Other conditions

  (3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

• Marginal note:Term if suspended punishment put into execution

  (4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the day on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following the pronouncement of the sentence.

Marginal note:Varying conditions

215.1 On application by an offender, a condition imposed under subsection 215(3) may be varied, or another condition substituted for that condition, by

• (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

• (b) a military judge, in the case of a condition imposed by a court martial; or

• (c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.

Marginal note:Hearing into breach of conditions

• 215.2 (1) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under section 215 may be made by

  • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

  • (b) a military judge, in the case of a condition imposed by a court martial; or

  • (c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.

• Marginal note:Revocation of suspension or changes to conditions

  (2) If a person referred to in any of paragraphs (1)(a) to (c) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

  • (a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

  • (b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.

Marginal note:Non-appearance of accused person

215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.

Definition of “suspending authority”

• 216. (1) In this section and section 217, “suspending authority” means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.

• Marginal note:Suspension of imprisonment or detention

  (2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.

• Marginal note:Notification

  (2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.

• Marginal note:Committal after suspension

  (2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.

Marginal note:Review and remission

• 217. (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

Parole Eligibility

Marginal note:Sentence of imprisonment for life

• 226.1 (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:

  • (a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

  • (b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

  • (c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

  • (d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligi­bility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or

  • (e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.

• Marginal note:Provisions of Criminal Code apply

  (2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of impris­onment for life that is imposed under this Act, and for that purpose

  • (a) a reference in sections 745.2 and 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and

  • (b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.

Marginal note:Power of court martial to delay parole

• 226.2 (1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

• Marginal note:Condition

  (2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.

• Marginal note:Criminal organization offences

  (3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

• Marginal note:Power of court martial to delay parole

  (4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of impris­onment of two years or more, including a sentence of impris­onment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

• Marginal note:Objectives

  (5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.

• (h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

• (i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

• (j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

• (k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

• (i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

• (j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

• (k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

• (l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

Marginal note:Avocats

• 249.21 (1) Le directeur du service d’avocats de la défense peut être assisté par des avocats inscrits au barreau d’une province.

Marginal note:Appeal committee

• 249.211 (1) The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.

• Marginal note:Protection of committee members

  (2) No criminal or civil proceedings lie against a member of the committee for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the committee.

Marginal note:Restitution of property in case of conviction

• 249.25 (1) A service tribunal that convicts or discharges absolutely a person of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

Criminal Record

Marginal note:Convictions for certain offences

• 249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

  • (a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

    • (i) a severe reprimand,

    • (ii) a reprimand,

    • (iii) a fine not exceeding basic pay for one month, or

    • (iv) a minor punishment;

  • (b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

• Marginal note:Criminal Records Act

  (2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

• Marginal note:Serment

  (11) Avant d’entrer en fonctions, les membres prêtent le serment suivant :

  Moi, .........., je jure (ou j’affirme solennellement) que j’exercerai fidèlement et honnêtement les devoirs qui m’incombent en ma qualité de membre de la Commission d’examen des plaintes concernant la police militaire en conformité avec les prescriptions de la Loi sur la défense nationale applicables à celle-ci, ainsi que toutes règles et instructions établies sous son régime, et que je ne révélerai ni ne ferai connaître, sans y avoir été dûment autorisé(e), rien de ce qui parviendra à ma connaissance en raison de mes fonctions. (Dans le cas du serment, ajouter : Ainsi Dieu me soit en aide.)

• Marginal note:No penalty for complaint

  (3) A person may not be penalized for exercising the right to make an interference complaint so long as the complaint is made in good faith.

• (ii) le président, le chef d’état-major de la défense, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un officier ou militaire du rang,

• (iii) le président, le sous-ministre, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un cadre supérieur du ministère.

Marginal note:Avis — plainte pour inconduite

250.22 Dans les meilleurs délais après la réception ou la notification d’une plainte pour inconduite, le grand prévôt avise par écrit la personne qui en fait l’objet de sa teneur, pour autant que cela, à son avis, ne risque pas de nuire à la tenue d’une enquête sous le régime de la présente loi.

• Marginal note:Avis du retrait

  (2) Le cas échéant, le président en avise aussitôt, par écrit, le grand prévôt et la personne qui fait l’objet de la plainte.

Marginal note:Deadline for resolving or disposing of complaint

250.261 The Provost Marshal shall resolve or dispose of a conduct complaint — other than a complaint that results in an investigation of an alleged criminal or service offence — within one year after receiving or being notified of it.

• Marginal note:Avis

  (3) Le cas échéant, il avise par écrit de sa décision le plaignant, ainsi que, si elle a déjà reçu notification de la plainte en application de l’article 250.22, la personne qui en fait l’objet, en faisant état à la fois des motifs de sa décision et du droit du plaignant de renvoyer sa plainte devant la Commission pour examen.

Marginal note:Rapport d’enquête

250.29 Au terme de l’enquête, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport comportant les éléments suivants :

Marginal note:Rapports provisoires

• 250.3 (1) Au plus tard soixante jours après la réception ou la notification de la plainte et, par la suite, tous les trente jours, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport écrit sur l’état d’avancement de l’affaire.

• Marginal note:Avis

  (3) Le cas échéant, il avise par écrit de sa décision le plaignant, la personne qui fait l’objet de la plainte, le chef d’état-major de la défense ou le sous-ministre, selon le cas, le juge-avocat général et le grand prévôt. L’avis fait mention des motifs de sa décision.

• b) le chef d’état-major de la défense, dans le cas où un officier ou militaire du rang fait l’objet de la plainte;

• c) le sous-ministre, dans le cas où un cadre supérieur du ministère fait l’objet de la plainte;

• Marginal note:Avis

  (3) S’il décide de faire tenir une enquête, il transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.

Marginal note:Audience

• 250.4 (1) Le président, s’il décide de convoquer une audience, désigne le ou les membres de la Commission qui la tiendront et transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.

Marginal note:Avis de l’audience

• 250.43 (1) Le plus tôt possible avant le début de l’audience, la Commission signifie au plaignant et à la personne qui fait l’objet de la plainte un avis écrit en précisant les date, heure et lieu.

Marginal note:Droits des intéressés

250.44 Le plaignant, la personne qui fait l’objet de la plainte et toute autre personne qui convainc la Commission qu’elle a un intérêt direct et réel dans celle-ci doivent avoir toute latitude de présenter des éléments de preuve à l’audience, d’y contre-interroger les témoins et d’y faire des observations, en personne ou par l’intermédiaire d’un avocat.

• Marginal note:Exception

  (2) Dans le cas où le grand prévôt fait l’objet de la plainte, c’est le chef d’état-major de la défense qui est chargé de la révision.

Marginal note:Révision — plainte pour ingérence

• 250.5 (1) Sur réception du rapport établi au titre des articles 250.36, 250.39 ou 250.48, la plainte pour ingérence est révisée à la lumière des conclusions et recommandations qu’il contient par le chef d’état-major de la défense, dans le cas où la personne qui en fait l’objet est un officier ou militaire du rang, ou par le sous-ministre, dans le cas où elle est un cadre supérieur du ministère.

• Marginal note:Exception

  (2) Dans le cas où le chef d’état-major de la défense ou le sous-ministre fait l’objet de la plainte, c’est le ministre qui est chargé de la révision.

• Marginal note:Destinataires

  (2) Il en transmet copie au ministre, au sous-ministre, au chef d’état-major de la défense, au juge-avocat général, au grand prévôt, au plaignant, à la personne qui fait l’objet de la plainte ainsi qu’à toute personne qui a convaincu la Commission qu’elle a un intérêt direct et réel dans la plainte.

Marginal note:Witness fees and allowances

251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

Limitation or Prescription Periods, Liability and Exemptions

Marginal note:Limitation or prescription period

• 269. (1) Unless an action or other proceeding is commenced within two years after the day on which the act, neglect or default complained of occurred, no action or other proceeding lies against Her Majesty or any person for

  • (a) an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority;

  • (b) any neglect or default in the execution of this Act or any regulations or military or departmental duty or authority; or

  • (c) an act or any neglect or default that is incidental to an act, neglect or default described in paragraph (a) or (b).

• Marginal note:Prosecutions

  (1.1) A prosecution in respect of an offence — other than an offence under this Act, the Geneva Conventions Act or the Crimes Against Humanity and War Crimes Act — relating to an act, neglect or default described in subsection (1) may not be commenced after six months from the day on which the act, neglect or default occurred.

Marginal note:Arrest of dependants

272. The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.

Independent Review

Marginal note:Review

• 273.601 (1) The Minister shall cause an independent review of the following provisions, and their operation, to be undertaken:

  • (a) sections 18.3 to 18.6;

  • (b) sections 29 to 29.28;

  • (c) Parts III and IV; and

  • (d) sections 251, 251.2, 256, 270, 272, 273 to 273.5 and 302.

• Marginal note:Report to Parliament

  (2) The Minister shall cause a report of a review to be laid before each House of Parliament within seven years after the day on which this section comes into force, and within every seven-year period after the tabling of a report under this subsection.

• Marginal note:Amending legislation

  (3) However, if an Act of Parliament amends this Act based on an independent review, the next report shall be tabled within seven years after the day on which the amending Act is assented to.

Marginal note:Nomination du commissaire et durée du mandat

• 273.63 (1) Le gouverneur en conseil peut nommer, à titre inamovible pour une période maximale de cinq ans, un juge surnuméraire ou un juge à la retraite d’une juridiction supérieure qu’il charge de remplir les fonctions de commissaire du Centre de la sécurité des télécommunications.

• Marginal note:Certificate of Judge Advocate General

  (2) A certificate that appears to have been signed by the Judge Advocate General, or by any person whom the Judge Advocate General may appoint for that purpose, attesting that an officer or non-commissioned member was convicted or discharged absolutely under this Act of desertion or absence without leave or that the officer or non-commissioned member was or has been continuously absent without leave for six months or more, and setting out the date of commencement and, if applicable, the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence of the facts attested to in that certificate.

• (d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improp­erly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a service tribunal, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or

Marginal note:Applications for employment

307. Every person who uses or authorizes the use of an application form, for or relating to any of the following matters, that contains a question that by its terms requires the applicant to disclose a conviction for an offence referred to in paragraph 249.27(1)(a) or (b) is guilty of an offence and liable on summary conviction to a fine of not more than $500 or to imprisonment for a term of not more than six months, or to both:

• (a) employment in any department set out in Schedule I to the Financial Administration Act;

• (b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;

• (c) enrolment in the Canadian Forces; or

• (d) employment in or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

• Canadian Forces Grievance Board

  Comité des griefs des Forces canadiennes

• Military Grievances External Review Committee

  Comité externe d’examen des griefs militaires

• Canadian Forces Grievance Board

  Comité des griefs des Forces canadiennes

• Military Grievances External Review Committee

  Comité externe d’examen des griefs militaires

• Canadian Forces Grievance Board

  Comité des griefs des Forces canadiennes

• Military Grievances External Review Committee

  Comité externe d’examen des griefs militaires

• Canadian Forces Grievance Board

  Comité des griefs des Forces canadiennes

• Military Grievances External Review Committee

  Comité externe d’examen des griefs militaires

• Canadian Forces Grievance Board

  Comité des griefs des Forces canadiennes

• Military Grievances External Review Committee

  Comité externe d’examen des griefs militaires

Marginal note:Time when eligible for full parole

• 120. (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act, to subsection 226.1(2) of the National Defence Act and to any order made under section 226.2 of that Act, and to subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.