National Defence Act (R.S.C., 1985, c. N-5)

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Act current to 2019-06-20 and last amended on 2018-12-18. Previous Versions

AMENDMENTS NOT IN FORCE

  • — 2013, c. 24, s. 12

    • R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)

      12 Subsection 30(4) of the Act is replaced by the following:

      • 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.

      • 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.

  • — 2013, c. 24, s. 13

    • 1998, c. 35, s. 10

      13 Subsection 35(1) of the Act is replaced by the following:

      • 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.

  • — 2013, c. 24, s. 46

    • 46 The Act is amended by adding the following after section 165.37:

      • 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.

  • — 2013, c. 24, s. 73

    • 73 The Act is amended by adding the following after section 249.21:

      • Appeal committee
        • 249.211 (1) The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.

        • Protection of committee members

          (2) No criminal or civil proceedings lie against a member of the committee for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the committee.

  • — 2014, c. 6, s. 21

    • 21 Section 197 of the National Defence Act is amended by adding the following in alphabetical order:

      disposition

      disposition means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4); (décision)

      significant threat to the safety of the public

      significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. (risque important pour la sécurité du public)

  • — 2014, c. 6, s. 22

    • 1991, c. 43, s. 18

      22 The portion of subsection 201(1) of the Act before paragraph (a) is replaced by the following:

      • Disposition
        • 201 (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

  • — 2014, c. 6, s. 23

    • 2005, c. 22, s. 49
      • 23 (1) Subparagraph 202.121(1)(b)(ii) of the French version of the Act is replaced by the following:

        • (ii) d’autre part, il ne présente aucun risque important pour la sécurité du public.

      • 2005, c. 22, s. 49

        (2) Paragraph 202.121(4)(b) of the French version of the Act is replaced by the following:

        • b) d’autre part, il ne présente aucun risque important pour la sécurité du public.

      • 2005, c. 22, s. 49

        (3) Paragraph 202.121(7)(b) of the French version of the Act is replaced by the following:

        • b) qu’il ne présente aucun risque important pour la sécurité du public;

  • — 2014, c. 6, s. 24

    • 1991, c. 43, s. 18
      • 24 (1) The portion of subsection 202.16(1) of the Act before paragraph (b) is replaced by the following:

        • Disposition
          • 202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

            • (a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;

      • 1991, c. 43, s. 18

        (2) Paragraph 202.16(1)(c) of the French version of the Act is replaced by the following:

        • c) la détention de l’accusé dans un hôpital ou un autre lieu approprié choisi par elle, sous réserve des modalités qu’elle estime indiquées.

  • — 2014, c. 6, s. 25

    • 25 The Act is amended by adding the following after section 202.16:

      High-Risk Accused
      • Application to court martial
        • 202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.

        • Application to Chief Military Judge

          (2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.

        • Restriction

          (3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.

        • Finding

          (4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and

          • (a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or

          • (b) the court martial is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

        • Definition of serious personal injury offence

          (5) For the purposes of subsection (4), serious personal injury offence means

          • (a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving

            • (i) the use or attempted use of violence against another person, or

            • (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or

          • (b) an offence referred to in section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code that is punishable under section 130 or an attempt to commit such an offence.

        • Factors to consider

          (6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including

          • (a) the nature and circumstances of the offence;

          • (b) any pattern of repetitive behaviour of which the offence forms a part;

          • (c) the accused person’s current mental condition;

          • (d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and

          • (e) the opinions of experts who have examined the accused person.

        • Detention of high-risk accused person

          (7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless

          • (a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and

          • (b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.

        • Assessment order

          (8) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

      • Referral to court martial for review
        • 202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.

        • Convening court martial

          (2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.

        • Review of finding by court martial

          (3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.

        • Finding not revoked

          (4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

        • Assessment order

          (5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.

  • — 2014, c. 6, s. 26, as amended by 2014, c. 6, s. 32(2)

    • 26 Section 202.201 of the Act is replaced by the following:

      • Procedure at disposition hearing
        • 202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

        • Hearing to be informal

          (2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

        • 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.

        • Notice of hearing — parties

          (4) The court martial shall give notice of the hearing to the parties.

        • Notice of hearing — victim

          (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.

        • Notice of release from custody and intended place of residence

          (6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release and the accused person’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.

        • Order excluding public

          (7) 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.

        • Right to counsel

          (8) The accused person or any other party has the right to be represented by counsel.

        • Assigning counsel

          (9) 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.

        • Right of accused person to be present

          (10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

        • Removal or absence of accused person

          (11) 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).

        • Rights of parties at hearing

          (12) 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.

        • Witnesses

          (13) A party may not compel the attendance of witnesses, but may request the court martial to do so.

        • Video links

          (14) 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.

        • Determination of mental condition of accused person

          (15) 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 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.

        • Victim impact statement

          (16) 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.

        • Procedure

          (17) 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.

        • Presentation of victim statement

          (18) 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.

        • Consideration by court martial

          (19) 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.

        • Copy of statement

          (20) 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.

        • Inquiry by court martial

          (21) 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.

        • Adjournment

          (22) 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 (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

        • Definition of victim

          (23) In this section, victim has the same meaning as in section 203.

      • Additional conditions — safety and security

        202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

        • (a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

        • (b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

  • — 2014, c. 6, s. 27

    • 27 Subsection 202.24(3) of the Act is amended by adding the following after paragraph (b):

      • (c) determining under subsection 202.162(3) whether to revoke a finding that an accused person is a high-risk accused;

  • — 2014, c. 6, s. 28

    • 2005, c. 22, s. 58

      28 Subsection 202.25(1) of the Act is replaced by the following:

      • Powers of Review Board
        • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

        • References to Attorney General

          (1.1) For the purpose of subsection (1), a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

  • — 2014, c. 6, s. 29

    • 29 Section 230 of the Act is amended by adding the following after paragraph (e):

      • (e.1) the legality of a finding made under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

  • — 2014, c. 6, s. 30

    • 30 Section 230.1 of the Act is amended by adding the following after paragraph (f):

      • (f.01) the legality of a decision not to make a finding under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

  • — 2014, c. 6, s. 31

    • 1991, c. 43, s. 22
      • 31 (1) Subsection 233(1) of the Act is replaced by the following:

        • Automatic suspension of certain dispositions
          • 233 (1) Subject to subsection (2), if the disposition appealed from is a disposition made under section 202, the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

      • 1991, c. 43, s. 22

        (2) Paragraph 233(2)(a) of the Act is replaced by the following:

        • (a) by order, direct that the application of a disposition made under section 202 not be suspended pending the determination of the appeal;

        • (a.1) by order, direct that the application of a disposition made under paragraph 202.16(1)(a) be suspended pending the determination of the appeal;

  • — 2014, c. 6, ss. 32(1), (5)

    • Bill C-15
      • 32 (1) Subsections (2) to (5) apply if Bill C-15, introduced in the 1st session of the 41st Parliament and entitled the Strengthening Military Justice in the Defence of Canada Act (in this section referred to as the “other Act”), receives royal assent.

      • (5) On the first day on which both section 61 of the other Act and section 28 of this Act are in force, subsection 202.25(1) of the National Defence Act is replaced by the following:

        • Powers of Review Board
          • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

          • References to Attorney General

            (1.1) For the purpose of subsection (1), a reference to the Attorney General of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code and a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of that Act shall be read as a reference to the Director of Military Prosecutions.

  • — 2015, c. 23, s. 32

    • 2010, c. 17, s. 45(2)

      32 Subsection 119.1(3) of the National Defence Act is replaced by the following:

      • Proof of certain facts by certificate

        (3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) or (1.01) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

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