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Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)

Assented to 2013-06-19

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

 Subsection 165(2) of the English version of the Act is replaced by the following:

  • 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:1998, c. 35, s. 42
  •  (1) Subsection 165.1(2) of the English version of the Act is replaced by the following:

    • Marginal note:Tenure of office and removal

      (2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

  • Marginal note:1998, c. 35, s. 42

    (2) Subsection 165.1(2.1) of the Act is replaced by the following:

    • Marginal note:Powers of inquiry committee

      (2.1) 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.

  •  (1) Section 165.12 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Irregularity, informality or defect

      (1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.

  • Marginal note:1998, c. 35, s. 42

    (2) Subsection 165.12(2) of the French version of the Act is replaced by the following:

    • Marginal note:Retrait de l’accusation

      (2) Le directeur des poursuites militaires peut retirer une mise en accusation déjà prononcée; toutefois, le retrait de la mise en accusation après le début du procès en cour martiale est subordonné à l’autorisation de celle-ci.

  • (3) Section 165.12 of the Act is amended by adding the following after subsection (3):

    • Marginal note:Effect of not preferring charge

      (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.

 Section 165.19 of the Act is amended by adding the following after subsection (1):

  • 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:1998, c. 35, s. 42

 Sections 165.21 and 165.22 of the Act are replaced by the following:

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

 The Act is amended by adding the following after section 165.23:

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:1998, c. 35, s. 42

 Section 165.24 of the Act is replaced by the following:

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:1998, c. 35, s. 42

 Section 165.26 of the Act is replaced by the following:

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.

 The Act is amended by adding the following after section 165.27:

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.

 
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