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

Conviction of Cognate Offence

Marginal note:Person charged with desertion

• 133 (1) A person charged with desertion may be found guilty of attempting to desert or of being absent without leave.

• Marginal note:Person charged with attempt to desert

  (2) A person charged with attempting to desert may be found guilty of being absent without leave.

Marginal note:Person charged with violent offence against officer

• 134 (1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

• Marginal note:Person charged with insubordinate behaviour

  (2) A person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.

Marginal note:Conviction of offence in circumstances involving lower punishment

135 A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

Marginal note:Powers on service trial of civil offences

136 Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.

Marginal note:Offence charged, attempt proved

• 137 (1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.

• (2) [Repealed, 2019, c. 15, s. 11]

• (3) [Repealed, 2019, c. 15, s. 11]

Marginal note:Special finding of guilty

138 A court martial may, instead of making a finding of not guilty, make a special finding of guilty if it concludes that

• (a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged; and

• (b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in their defence.

If the court martial makes a special finding of guilty, it shall state the differences between the facts proved and the facts alleged in the statement of particulars.

Punishments

Marginal note:Scale of punishments

• 139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

  • (a) imprisonment for life;

  • (b) imprisonment for two years or more;

  • (c) dismissal with disgrace from Her Majesty’s service;

  • (d) imprisonment for less than two years;

  • (e) dismissal from Her Majesty’s service;

  • (f) detention;

  • (g) reduction in rank;

  • (h) forfeiture of seniority;

  • (i) severe reprimand;

  • (j) reprimand;

  • (k) fine; and

  • (l) minor punishments.

• Marginal note:Definition of less punishment

  (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.

Marginal note:Imprisonment for shorter term

140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.

Marginal note:Dismissal as accompanying punishment

• 140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.

• Marginal note:Dismissal as accompanying punishment

  (2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.

Marginal note:Reduction in rank as accompanying punishment

140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be

• (a) in the case of an officer, to the lowest commissioned rank; and

• (b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.

140.3 [Repealed, 2013, c. 24, s. 19]

140.4 [Repealed, 2013, c. 24, s. 19]

Marginal note:Dismissal with disgrace

• 141 (1) If a court martial imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, it may, in addition, despite any other provision of this Division, impose a punishment of imprisonment for less than two years.

• Marginal note:Effective date of dismissal

  (1.1) A punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.

• Marginal note:Consequences

  (2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.

Marginal note:Detention

• 142 (1) The punishment of detention is subject to the following conditions:

  • (a) detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; and

  • (b) no officer may be sentenced to detention.

• Marginal note:Reduction in rank during detention

  (2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.

Marginal note:Reduction in rank

• 143 (1) The punishment 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 punishment of reduction in rank does not

  • (a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and

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

Marginal note:Forfeiture of seniority

144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.

Marginal note:Fine

• 145 (1) A fine must be imposed in a stated amount.

• Marginal note:Terms of payment

  (2) The terms of payment of a fine are in the discretion of the court martial that imposes the fine.

• Marginal note:Variation of terms of payment

  (3) The terms of payment of a fine may be varied by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.

Marginal note:Civil enforcement of fines

• 145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.

• Marginal note:Effect of filing order

  (2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.

Marginal note:Minor punishments

146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.

147 [Repealed, 2019, c. 15, s. 15]

Prohibition Orders

Marginal note:Prohibition order

• 147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of

  • (a) an offence in the commission of which violence against a person was used, threatened or attempted;

  • (b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance;

  • (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act;

  • (c.1) an offence relating to the contravention of any of sections 9 to 14 of the Cannabis Act; or

  • (d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.

• Marginal note:Duration of prohibition order

  (2) An order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.

• Marginal note:Application of order

  (3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the performance of their duties.

• Marginal note:Notification

  (4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the Firearms Act to be notified of the order.

Marginal note:Requirement to surrender

147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer

• (a) any thing the possession of which is prohibited by the order that is in the possession of the offender on the commencement of the order; and

• (b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the offender on the commencement of the order.

The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.