Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)
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Assented to 2013-06-19
Strengthening Military Justice in the Defence of Canada Act
S.C. 2013, c. 24
Assented to 2013-06-19
An Act to amend the National Defence Act and to make consequential amendments to other Acts
SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Strengthening Military Justice in the Defence of Canada Act.
R.S., c. N-5NATIONAL DEFENCE ACT
Marginal note:2007, c. 5, s. 1
2. (1) The definition “Provost Marshal” in subsection 2(1) of the National Defence Act is repealed.
Marginal note:1998, c. 35, s. 1(4)
(2) The definition “Grievance Board” in subsection 2(1) of the English version of the Act is repealed.
Marginal note:1998, c. 35, s. 1(4)
(3) The definition “military judge” in subsection 2(1) of the Act is replaced by the following:
“military judge”
« juge militaire »
“military judge” includes a reserve force military judge;
Marginal note:1998, c. 35, s. 1(4)
(4) The definition Comité des griefs in subsection 2(1) of the French version of the Act is replaced by the following:
« Comité des griefs »
“Grievances Committee”
Comité des griefs Le Comité externe d’examen des griefs militaires prorogé par le paragraphe 29.16(1).
(5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“military police”
« police militaire »
“military police” means the officers and non-commissioned members appointed under regulations made for the purposes of section 156;
(6) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
“Grievances Committee”
« Comité des griefs »
“Grievances Committee” means the Military Grievances External Review Committee continued by subsection 29.16(1);
Marginal note:1998, c. 35, s. 4
3. (1) Paragraph 12(3)(a) of the Act is replaced by the following:
(a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;
(2) Section 12 of the Act is amended by adding the following after subsection (3):
Marginal note:Retroactive effect
(4) Regulations made under paragraph (3)(a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect
(a) in the case of an inquiry under section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or
(b) in the case of an inquiry under section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.
4. The Act is amended by adding the following after section 18.2:
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.
5. Section 29 of the Act is amended by adding the following after subsection (2):
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:1998, c. 35, s. 7
6. Section 29.11 of the Act is replaced by the following:
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:1998, c. 35, s. 7
7. (1) Subsection 29.12(1) of the Act is replaced by the following:
Marginal note:Referral to Grievances Committee
29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.
Marginal note:1998, c. 35, s. 7
(2) Paragraph 29.12(2)(b) of the English version of the Act is replaced by the following:
(b) any decision made by an authority in respect of the grievance; and
Marginal note:1998, c. 35, s. 7
8. Subsection 29.13(2) of the Act is replaced by the following:
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:1998, c. 35, s. 7
9. Section 29.14 of the Act is replaced by the following:
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).
Marginal note:1998, c. 35, s. 7
10. The heading before section 29.16 of the Act is replaced by the following:
Military Grievances External Review Committee
Marginal note:1998, c. 35, s. 7
11. (1) Subsection 29.16(1) of the Act is replaced by the following:
Marginal note:Grievances Committee
29.16 (1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.
Marginal note:1998, c. 35, s. 7
(2) Subsection 29.16(10) of the English version of the Act is replaced by the following:
Marginal note:Secondment
(10) An officer or a non-commissioned member who is appointed as a member of the Grievances Committee shall be seconded to the Grievances Committee in accordance with section 27.
Marginal note:1998, c. 35, s. 7
(3) Subsection 29.16(11) of the Act is replaced by the following:
Marginal note:Oath of office
(11) Every member shall, before commencing the duties of office, take the following oath of office:
I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)
Marginal note:R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)
12. Subsection 30(4) of the Act is replaced by the following:
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:1998, c. 35, s. 10
13. Subsection 35(1) of the Act is replaced by the following:
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.
Marginal note:1998, c. 35, s. 20
14. Paragraph 66(1)(b) of the Act is replaced by the following:
(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.
15. The Act is amended by adding the following after section 72:
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:1998, c. 35, s. 29
16. Section 101.1 of the Act is replaced by the following:
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.
Marginal note:1998, c. 35, s. 32
17. Subsection 118(1) of the Act is replaced by the following:
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:1992, c. 16, s. 1
18. Section 137 of the English version of the Act is replaced by the following:
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.
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