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

Full Document:  

Act current to 2022-01-12 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 2Service Offences and Punishments (continued)

Prohibition Orders (continued)

Marginal note:Return to owner

 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,

  • (a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and

  • (b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,

the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

  • 1995, c. 39, s. 176

Intermittent Sentences

Marginal note:Imprisonment or detention

  •  (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

    • (a) that the sentence be served intermittently at the times specified in the order; and

    • (b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.

  • Marginal note:Application to vary intermittent sentence

    (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying

    • (a) to their commanding officer, in the case of a sentence imposed by summary trial; or

    • (b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.

  • Marginal note:New sentence of imprisonment or detention

    (3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.

  • Marginal note:Hearing into breach of conditions

    (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by

    • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or

    • (b) a military judge, in the case of a condition imposed by a court martial.

  • Marginal note:Consequences of breach

    (5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

    • (a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

    • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.

  • R.S., 1985, c. N-5, s. 148
  • 2013, c. 24, s. 24

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

 Where a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.

  • R.S., 1985, c. N-5, s. 149
  • 2011, c. 5, s. 7

 [Repealed before coming into force, 2005, c. 22, s. 47]

Punishment for Certain Offences

Marginal note:Punishment for certain offences

  •  (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

  • Marginal note:Offender must be notified

    (2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.

  • 2001, c. 41, s. 99

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]

DIVISION 3Arrest and Pre-Trial Custody

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Division.

custody review officer

custody review officer, in respect of a person in custody, means

  • (a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

  • (b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer. (officier réviseur)

designated offence

designated offence means

  • (a) an offence that is punishable under section 130 that is

    • (i) listed in section 469 of the Criminal Code,

    • (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

    • (iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

  • (b) an offence under this Act where the minimum punishment is imprisonment for life;

  • (c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

  • (d) an offence under this Act that is a criminal organization offence; or

  • (e) an offence under this Act that is a terrorism offence. (infraction désignée)

  • R.S., 1985, c. N-5, s. 153
  • R.S., 1985, c. 31 (1st Supp.), s. 47
  • 1998, c. 35, s. 40
  • 2001, c. 41, s. 100
  • 2012, c. 1, s. 48(E)
  • 2013, c. 24, s. 26(F)

Authority to Arrest

Marginal note:General authority

  •  (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

  • Marginal note:Reasonably necessary force

    (2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

  • R.S., 1985, c. N-5, s. 154
  • R.S., 1985, c. 31 (1st Supp.), s. 48
  • 1998, c. 35, s. 92

Marginal note:Powers of officers

  •  (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

    • (a) any non-commissioned member;

    • (b) any officer of equal or lower rank; and

    • (c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

  • Marginal note:Powers of non-commissioned members

    (2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

    • (a) any non-commissioned member of lower rank; and

    • (b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

  • Marginal note:Limitations on power of arrest

    (2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:

    • (a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to

      • (i) establish the person’s identity,

      • (ii) secure or preserve evidence of or relating to the offence, and

      • (iii) prevent the continuation or repetition of the offence or the commission of another offence; and

    • (b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.

  • Marginal note:Arrest of persons other than officers or non-commissioned members

    (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.

  • R.S., 1985, c. N-5, s. 155
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 2013, c. 24, s. 27

Marginal note:Powers of military police

  •  (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may

    • (a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

    • (b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

  • Marginal note:Arrest without warrant — limitations

    (2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.

  • R.S., 1985, c. N-5, s. 156
  • R.S., 1985, c. 31 (1st Supp.), ss. 49, 60
  • 1998, c. 35, s. 41
  • 2013, c. 24, s. 28

Marginal note:Issue of warrants

  •  (1) Subject to subsection (2), every commanding officer, and every officer to whom the power of trying a charge summarily has been delegated under subsection 163(4), may by a warrant under his hand authorize any person to arrest any other person triable under the Code of Service Discipline who

    • (a) has committed,

    • (b) is believed on reasonable grounds to have committed, or

    • (c) is charged under this Act with having committed

    a service offence.

  • Marginal note:Limitation

    (2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

  • Marginal note:Contents of warrants

    (3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

  • Marginal note:Saving provision

    (4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.

  • R.S., 1985, c. N-5, s. 157
  • R.S., 1985, c. 31 (1st Supp.), ss. 50, 60

Action following Arrest

Marginal note:Release from custody

  •  (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

    • (a) the gravity of the offence alleged to have been committed;

    • (b) the need to establish the identity of the person under arrest;

    • (c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

    • (d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;

    • (e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

    • (f) the necessity to ensure the safety of the person under arrest or any other person.

  • Marginal note:Retention in custody

    (2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

  • Marginal note:Duty to receive into service custody

    (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

  • Marginal note:Account in writing

    (4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

  • R.S., 1985, c. N-5, s. 158
  • R.S., 1985, c. 31 (1st Supp.), ss. 51, 60
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 29

Marginal note:Report of custody

  •  (1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

  • Marginal note:Contents

    (2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

  • Marginal note:Representations concerning release

    (3) Before the report of custody is delivered to the custody review officer,

    • (a) a copy of the report and the account in writing must be provided to the person in custody; and

    • (b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

  • Marginal note:Representations to be reduced to writing

    (4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

  • Marginal note:Accompanying documents

    (5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.

  • 1998, c. 35, s. 42
 
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