Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)
Full Document:
- HTMLFull Document: Strengthening Military Justice in the Defence of Canada Act (Accessibility Buttons available) |
- PDFFull Document: Strengthening Military Justice in the Defence of Canada Act [391 KB]
Assented to 2013-06-19
R.S., c. N-5NATIONAL DEFENCE ACT
Marginal note:1998, c. 35, s. 42
48. Paragraph 168(d) of the Act is replaced by the following:
(d) a member of the military police;
Marginal note:1998, c. 35, s. 42
49. Subsection 179(1) of the English version of the Act is replaced by the following:
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.
Marginal note:1998, c. 35, s. 43; 2001, c. 41, s. 101
50. Section 180 of the Act and the heading before it are replaced by the following:
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.
51. Section 181 of the Act is replaced by the following:
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.
52. (1) Subsection 182(1) of the Act is replaced by the following:
Marginal note:Admission of documents and records
182. (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules.
(2) Subsection 182(2) of the English version of the Act is replaced by the following:
Marginal note:Statutory declarations admissible, subject to conditions
(2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:
(a) if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;
(b) if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and
(c) at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.
Marginal note:1998, c. 35, s. 45(2)
53. Subsection 184(3) of the Act is replaced by the following:
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.
54. The Act is amended by adding the following after section 194:
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.
Marginal note:2000, c. 10, s. 1
55. Paragraph (b) of the definition “peace officer” in section 196.11 of the Act is replaced by the following:
(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:2000, c. 10, s. 1
56. The portion of subsection 196.12(1) of the Act before paragraph (a) is replaced by the following:
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:2005, c. 22, s. 48
57. Subsection 202.12(1.1) of the Act is replaced by the following:
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:2005, c. 22, s. 49
58. (1) Paragraph 202.121(7)(c) of the Act is replaced by the following:
(c) that a stay is in the interests of the proper administration of military justice.
Marginal note:2005, c. 22, s. 49
(2) The portion of subsection 202.121(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Proper administration of military justice
(8) To determine whether a stay of proceedings is in the interests of the proper administration of military justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:
Marginal note:2005, c. 22, s. 49
(3) Paragraph 202.121(8)(b) of the Act is replaced by the following:
(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of military justice;
59. The Act is amended by adding the following after section 202.2:
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:2005, c. 22, s. 56
60. (1) The portion of subsection 202.23(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Arrest without warrant for contravention of disposition
(2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person
Marginal note:2005, c. 22, s. 56
(2) Subsection 202.23(2.1) of the Act is replaced by the following:
Marginal note:Accused person released subject to conditions
(2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.
Marginal note:2005, c. 22, s. 56
(3) The portion of subsection 202.23(2.2) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Continued detention
(2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe
Page Details
- Date modified: