Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)
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Assented to 2013-06-19
R.S., c. N-5NATIONAL DEFENCE ACT
46. The Act is amended by adding the following after section 165.37:
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.
Marginal note:1998, c. 35, s. 42
47. (1) Subsections 167(2) and (3) of the Act are replaced by the following:
Marginal note:Rank of senior member
(2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.
Marginal note:1998, c. 35, s. 42
(2) Subsections 167(5) to (7) of the Act are replaced by the following:
Marginal note:Rank for trial of colonel
(5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.
Marginal note:Rank for trial of lieutenant-colonel or lower-ranked officer
(6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.
Marginal note:Rank for trial of non-commissioned member
(7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.
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
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