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

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)

164 [Repealed, 2019, c. 15, s. 25]

164.1 [Repealed, 2019, c. 15, s. 25]

164.2 [Repealed, 2019, c. 15, s. 25]

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred

• 165 (1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.

• Marginal note:Meaning of prefer

  (2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator.

Director of Military Prosecutions

Marginal note:Appointment

• 165.1 (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Military Prosecutions.

• Marginal note:Tenure of office and removal

  (2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

• Marginal note:Powers of inquiry committee

  (2.1) An inquiry committee has the same powers, rights and privileges — other than 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:Re-appointment

  (3) The Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

165.11 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.

Marginal note:Preferring charges

• 165.12 (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

  • (a) prefer the charge; or

  • (b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

• Marginal note:Irregularity, informality or defect

  (1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.

• Marginal note:Withdrawing charges

  (2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

• Marginal note:Effect of withdrawing charge

  (3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

• Marginal note:Effect of not preferring charge

  (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.

Marginal note:Reasons for not proceeding

165.13 If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.

165.14 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

165.15 The Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.

Marginal note:Acting Director of Military Prosecutions

165.16 The powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.

Marginal note:Relationship to Judge Advocate General

• 165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

• Marginal note:General instructions

  (2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

• Marginal note:Specific instructions

  (3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

• Marginal note:Availability to public

  (4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

• Marginal note:Exception

  (5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.

• Marginal note:Copies to Minister

  (6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.