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

Full Document:  

Act current to 2021-12-23 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Military Judges Compensation Committee

Marginal note:Composition of Committee

  •  (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

    • (a) one person nominated by the military judges;

    • (b) one person nominated by the Minister; and

    • (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

  • Marginal note:Tenure and removal

    (2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.

  • Marginal note:Reappointment

    (3) A member is eligible to be reappointed for one further term.

  • Marginal note:Absence or incapacity

    (4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

  • Marginal note:Vacancy

    (5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

  • Marginal note:Quorum

    (6) All three members of the compensation committee together constitute a quorum.

  • Marginal note:Remuneration

    (7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

  • 2013, c. 24, s. 45

Marginal note:Mandate

  •  (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

  • Marginal note:Factors to be considered

    (2) In conducting its inquiry, the compensation committee shall consider

    • (a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

    • (b) the role of financial security of the judiciary in ensuring judicial independence;

    • (c) the need to attract outstanding candidates to the judiciary; and

    • (d) any other objective criteria that the committee considers relevant.

  • Marginal note:Quadrennial inquiry

    (3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

  • Marginal note:Postponement

    (4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

  • 2013, c. 24, s. 45

Marginal note:Other inquiries

  •  (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1).

  • Marginal note:Report

    (2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee.

  • Marginal note:Continuance of duties

    (3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee.

  • 2013, c. 24, s. 45

Marginal note:Extension

 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

  • 2013, c. 24, s. 45

Marginal note:Minister’s duties

  •  (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

  • Marginal note:Response

    (2) The Minister shall respond to a report within six months after receiving it.

  • 2013, c. 24, s. 45

General Courts Martial

Marginal note:Jurisdiction

 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

  • R.S., 1985, c. N-5, s. 166
  • 1998, c. 35, s. 42

Marginal note:Punishment limitation

 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

  • 2008, c. 29, s. 9

Marginal note:Composition

  •  (1) A General Court Martial is composed of a military judge and a panel of five members.

  • Marginal note:Rank of senior member

    (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.

  • (3) [Repealed, 2013, c. 24, s. 47]

  • Marginal note:Ranks for trial of brigadier-general or above

    (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

  • Marginal note:Rank for trial of colonel

    (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.

  • Marginal note:Rank for trial of lieutenant-colonel or lower-ranked officer

    (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.

  • Marginal note:Rank for trial of non-commissioned member

    (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.

  • R.S., 1985, c. N-5, s. 167
  • 1992, c. 16, s. 3
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 47

Marginal note:Ineligibility to serve

 None of the following persons may sit as a member of the panel of a General Court Martial:

  • (a) an officer or non-commissioned member who is a lawyer or notary;

  • (b) a witness for the prosecution or the accused person;

  • (c) the commanding officer of the accused person;

  • (d) a member of the military police;

  • (e) an officer below the rank of captain;

  • (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

  • (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

  • R.S., 1985, c. N-5, s. 168
  • 1992, c. 16, s. 4
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 48

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

Standing Courts Martial

Marginal note:Jurisdiction

 A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

  • R.S., 1985, c. N-5, s. 173
  • 1992, c. 16, s. 6
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 11

Marginal note:Composition

 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

  • R.S., 1985, c. N-5, s. 174
  • 1992, c. 16, s. 6
  • 1998, c. 35, s. 42

Marginal note:Punishment limitation

 A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

  • R.S., 1985, c. N-5, s. 175
  • 1991, c. 43, s. 16
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 12

 [Repealed, 2008, c. 29, s. 12]

 [Repealed, 2008, c. 29, s. 12]

 [Repealed, 2008, c. 29, s. 12]

Powers

Marginal note:Courts martial

  •  (1) A court martial has the same powers, rights and privileges — including 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:Military judges

    (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

  • R.S., 1985, c. N-5, s. 179
  • R.S., 1985, c. 31 (1st Supp.), s. 56
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 49(E)

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

  •  (1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.

  • Marginal note:Exception

    (2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary

    • (a) in the interests of public safety or public morals;

    • (b) for the maintenance of order or the proper administration of military justice; or

    • (c) to prevent injury to international relations, national defence or national security.

  • Marginal note:Witnesses

    (3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.

  • Marginal note:Clearing court

    (4) For the purpose of any deliberation, a court martial or military judge, as the case may be, may cause the place where the proceedings are being held to be cleared.

  • R.S., 1985, c. N-5, s. 180
  • 1992, c. 16, s. 8
  • 1998, c. 35, s. 43
  • 2001, c. 41, s. 101
  • 2013, c. 24, s. 50

Rules of Evidence

Marginal note:Rules of evidence

  •  (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.

  • Marginal note:Publication

    (2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.

  • R.S., 1985, c. N-5, s. 181
  • 2013, c. 24, s. 51

Marginal note:Admission of documents and records

  •  (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules.

  • Marginal note:Statutory declarations admissible, subject to conditions

    (2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:

    • (a) if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;

    • (b) if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and

    • (c) at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.

  • R.S., 1985, c. N-5, s. 182
  • 2013, c. 24, s. 52

Witnesses at Courts Martial

Marginal note:Procurement of attendance of witnesses

  •  (1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.

  • Marginal note:Exception

    (1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.

  • Marginal note:Procurement of attendance in exceptional cases

    (2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.

  • Marginal note:Reimbursement of accused for fees and expenses

    (3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.

  • Marginal note:Rights of accused preserved

    (4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire.

  • R.S., 1985, c. N-5, s. 183
  • 1998, c. 35, s. 44
 
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