An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (S.C. 2019, c. 15)

Marginal note:Direction — no communication

158.61 If a custody review officer directs that a person be retained in custody, the custody review officer may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction except in accordance with any conditions specified in the direction that the officer considers necessary.

• (a) custody is necessary to ensure the person’s attendance before a court martial or civil court to be dealt with according to law;

Marginal note:Direction — no communication

159.31 If a military judge directs that a person be retained in custody, the military judge may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the military judge considers necessary.

• Marginal note:Consideration of victim’s safety and security

  (2) If the military judge directs that a person be released, with or without conditions, the military judge shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.

• Marginal note:Copy to victim

  (3) The military judge shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

Marginal note:Definition of commanding officer

160 In this Division, commanding officer, in respect of a person charged with having committed a service offence or a service infraction, means the commanding officer of the person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the person.

Laying of Charge

Marginal note:Laying of charge

• 161 (1) Proceedings against a person who is alleged to have committed a service offence or a service infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

• Marginal note:Duty to act expeditiously

  (2) If the person is retained in custody or released from custody with conditions, a charge must be laid as expeditiously as the circumstances permit.

Marginal note:Referral of charge — service offence

• 161.1 (1) After a person is charged with having committed a service offence, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.

• Marginal note:Referral of charge — service infraction

  (2) After a person is charged with having committed a service infraction, the charge must be referred, in accordance with regulations made by the Governor in Council, to an officer who is a commanding officer in respect of the person.

DIVISION 5Summary Hearings

Interpretation

Marginal note:Definitions

162.3 The following definitions apply in this Division.

commanding officer

commanding officer, in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. (commandant)

delegated officer

delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. (officier délégué)

scale of sanctions

scale of sanctions means the scale of sanctions set out in subsection 162.7. (échelle des sanctions)

superior commander

superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)

Service Infractions

Marginal note:Summary hearing

162.4 Service infractions may be dealt with only by summary hearing.

Marginal note:Not offence

162.5 A service infraction is not an offence under this Act.

Marginal note:Prior trial — offence

• 162.6 (1) If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state.

• Marginal note:Prior summary hearing — service infraction

  (2) If a summary hearing has been conducted in respect of a service infraction that a person is alleged to have committed, the person may be charged, dealt with and tried in respect of an offence arising from the same facts, regardless of whether or not the person was found to have committed the service infraction.

• Marginal note:Answer or statement — restriction

  (3) No answer given or statement made by a person at their summary hearing may be used or be receivable against them in any disciplinary, criminal or civil proceeding, other than at a hearing or proceeding in respect of an allegation that they gave the answer or made the statement knowing it to be false.

Marginal note:Scale of sanctions

162.7 The following sanctions may be imposed in respect of a service infraction, and each is a sanction less than every sanction preceding it:

• (a) reduction in rank;

• (b) severe reprimand;

• (c) reprimand;

• (d) deprivation of pay, and of any allowance prescribed in regulations made by the Governor in Council, for not more than 18 days; and

• (e) minor sanctions prescribed in regulations made by the Governor in Council.

Marginal note:Reduction in rank

• 162.8 (1) The sanction of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.

• Marginal note:Restrictions

  (2) The sanction of reduction in rank is not to involve

  • (a) reduction to a rank lower than that to which the person who has committed a service infraction can be reduced under regulations; and

  • (b) in the case of a commissioned officer, reduction to a rank lower than commissioned rank.

Marginal note:Objectives of sanctions

162.9 The imposition of sanctions is intended to achieve 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 indisciplined conduct;

• (d) to deter persons from committing service infractions;

• (e) to assist in rehabilitating persons who have committed service infractions;

• (f) to promote a sense of responsibility in persons who have committed service infractions.

Marginal note:Fundamental principle

162.91 Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it.

Marginal note:Other principles

162.92 Sanctions must be imposed in accordance with the following other principles:

• (a) a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that

  • (i) the person, in committing the service infraction, abused their rank or other position of trust or authority,

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

  • (iii) the commission of the service infraction resulted in harm to the conduct of a military operation or any military training;

• (b) a sanction should be similar to sanctions imposed on persons for similar service infractions committed in similar circumstances; and

• (c) a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces.

Marginal note:Consideration of indirect consequences

162.93 In determining the sanction to be imposed against a person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the finding that the person committed a service infraction, or of the sanction.

Summary Hearings

Marginal note:Delegation

162.94 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command.

Marginal note:Commanding officer’s obligation

162.95 A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer.

Marginal note:Jurisdiction

• 163 (1) A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied:

  • (a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;

  • (b) having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate;

  • (c) there are no reasonable grounds to believe that the person charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings; and

  • (d) having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing.

• Marginal note:Prohibition on conducting hearing

  (2) A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she

  • (a) carried out or directly supervised the investigation of the service infraction;

  • (b) issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the service infraction; or

  • (c) laid the charge or caused it to be laid.

  However, he or she may conduct such a hearing if, having regard to all the circumstances, it is not practicable for any other superior commander, commanding officer or delegated officer to conduct the hearing.

Marginal note:Sanctions imposed by superior commander

• 163.1 (1) A superior commander who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in section 162.7.

• Marginal note:Sanctions imposed by commanding officer

  (2) A commanding officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e).

• Marginal note:Sanctions imposed by delegated officer

  (3) A delegated officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the following sanctions:

  • (a) a sanction referred to in paragraph 162.7(d) for not more than seven days;

  • (b) minor sanctions referred to in paragraph 162.7(e).

Marginal note:Obligation after referral

163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide not to proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer.

Marginal note:Subsequent summary hearing proceedings not precluded

163.3 A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time.

Marginal note:Limitation period

163.4 A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed.

Marginal note:No territorial limitation

163.5 Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada.

Review Authorities

Marginal note:Chief of the Defence Staff and other military authorities

• 163.6 (1) The review authorities in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing are the Chief of the Defence Staff and any other military authorities that are prescribed by the Governor in Council in regulations.

• Marginal note:When authorities may act

  (2) A review authority in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing may act on its own initiative or on application, made in accordance with regulations made by the Governor in Council, of the person found to have committed the service infraction.

Quashing of Findings

Marginal note:Authority to quash

• 163.7 (1) A review authority may quash a finding, by an officer who conducted a summary hearing, that a person has committed a service infraction.

• Marginal note:Effect of complete quashing

  (2) If a finding that a person has committed a service infraction is quashed and no other such finding was made at the summary hearing, every sanction imposed as a result of the quashed finding is also quashed and a new summary hearing may be held in relation to the service infraction as if no previous summary hearing had been held.

• Marginal note:Effect of partial quashing

  (3) In the case where more than one finding has been made that a person has committed a service infraction and a review authority quashes one or more but not all of them, if a sanction imposed is in excess of any that may be imposed in respect of the remaining findings or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Findings

Marginal note:Substitution of invalid or unsubstantiated findings

• 163.8 (1) A review authority may substitute a new finding for any finding that a person has committed a service infraction that was invalidly made or that cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears to the review authority that the officer who conducted the summary hearing was satisfied of the facts that establish the service infraction specified or involved in the new finding.

• Marginal note:Effect on sanction

  (2) If a new finding is substituted and a sanction imposed in respect of the original finding is in excess of a sanction that may be imposed in respect of the new finding or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Sanctions

Marginal note:Authority to substitute

• 163.9 (1) A review authority may substitute for any invalid sanction imposed by an officer who conducted a summary hearing any new sanction or sanctions that it considers appropriate.

• Marginal note:Condition applicable to new sanction

  (2) If a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than that other sanction.

Commutation, Mitigation and Remission of Sanctions

Marginal note:Authority to commute, mitigate or remit sanctions

• 163.91 (1) A review authority may commute, mitigate or remit any or all of the sanctions imposed by an officer who conducted a summary hearing.

• Marginal note:Definitions

  (2) The following definitions apply in subsection (1).

  commute

  commute means to replace a sanction with another sanction that is lower in the scale of sanctions. (commuer)

  mitigate

  mitigate means to impose a lesser amount of the same sanction. (mitiger)

  remit

  remit means to exempt a person from the requirement to undergo the whole or any part of a sanction. (remettre)