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

Full Document:  

Act current to 2022-06-20 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Court Martial Administrator

Marginal note:Appointment

 There shall be a person appointed to be the Court Martial Administrator.

  • 1998, c. 35, s. 42

Marginal note:Duties

  •  (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

  • Marginal note:Summoning of accused person

    (1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

  • Marginal note:Other duties

    (2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

  • Marginal note:Relationship to Chief Military Judge

    (3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 7
  • 2013, c. 24, s. 40

Marginal note:Convening General Court Martial

  •  (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

    • (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

    • (b) an offence punishable under section 130 that is punishable by imprisonment for life; or

    • (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

  • Marginal note:Consent to be tried by Standing Court Martial

    (2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

  • Marginal note:Withdrawal of consent

    (3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.

  • 2008, c. 29, s. 8

Marginal note:Convening Standing Court Martial

 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

  • (a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or

  • (b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.

  • 2008, c. 29, s. 8

Marginal note:Choice of accused

  •  (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.

  • Marginal note:Notification

    (2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

  • Marginal note:Failure to make choice

    (3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.

  • Marginal note:New choice — as of right

    (4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

  • Marginal note:New choice — with consent

    (5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

  • Marginal note:Two or more accused

    (6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.

  • Marginal note:Convening of court martial

    (7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.

  • 2008, c. 29, s. 8

Marginal note:Acting Court Martial Administrator

 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

  • 1998, c. 35, s. 42

Military Judges

Marginal note:Appointment

  •  (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.

  • Marginal note:Oath

    (2) Every military judge shall, before commencing the duties of office, take the following oath of office:

    I blank line solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

  • Marginal note:Removal for cause

    (3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Ceasing to hold office

    (4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

  • Marginal note:Resignation

    (5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

  • 1998, c. 35, s. 42
  • 2011, c. 22, s. 2
  • 2013, c. 24, s. 41

Reserve Force Military Judges

Marginal note:Panel established

  •  (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who

    • (a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;

    • (b) has been a military judge;

    • (c) has presided at a Standing Court Martial or a Special General Court Martial; or

    • (d) has been a judge advocate at a court martial.

  • Marginal note:Reserve force military judge

    (2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

  • Marginal note:Oath

    (3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:

    I blank line solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 41

Marginal note:Removal from panel

  •  (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Automatic removal from panel

    (2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge attaining the age of 60 years.

  • Marginal note:Voluntary removal from panel

    (3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

  • 2013, c. 24, s. 41

Marginal note:Chief Military Judge

  •  (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

  • Marginal note:Training

    (2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.

  • 2013, c. 24, s. 41

Marginal note:Restriction on activities

 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.

  • 2013, c. 24, s. 41

Duties and Immunity of Military Judges

Marginal note:Judicial duties and functions

  •  (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

  • Marginal note:Other duties and functions

    (2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.

  • Marginal note:Boards of inquiry

    (3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

  • 1998, c. 35, s. 42

Marginal note:Immunity

 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

  • 2013, c. 24, s. 42

Chief Military Judge

Marginal note:Chief Military Judge

  •  (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.

  • Marginal note:Rank

    (2) The Chief Military Judge holds a rank that is not less than colonel.

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 43

Marginal note:Duties and functions

 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

  • 1998, c. 35, s. 42

Marginal note:Delegation

 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 44

Marginal note:Delegation

 The Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.

  • 1998, c. 35, s. 42

Marginal note:Deputy Chief Military Judge

 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.

  • 2013, c. 24, s. 45

Marginal note:Power, duties and functions

 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.

  • 2013, c. 24, s. 45

Marginal note:Rules of practice and procedure

 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

  • (a) pre-trial conferences and other preliminary proceedings;

  • (b) the making of applications under section 158.7;

  • (c) the bringing of persons before a military judge under section 159;

  • (d) the scheduling of trials by court martial;

  • (e) the minutes of proceedings of courts martial and other proceedings;

  • (f) documents, exhibits or other things connected with any proceeding, including public access to them; and

  • (g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.

  • 2013, c. 24, s. 45

Military Judges Inquiry Committee

Marginal note:Composition of Committee

  •  (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.

  • Marginal note:Chairperson

    (2) The Chief Justice shall appoint one of the judges to act as Chairperson.

  • Marginal note:Powers of inquiry committee

    (3) The inquiry committee 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.

  • 2013, c. 24, s. 45

Marginal note:Inquiry required

  •  (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

  • Marginal note:Other inquiry

    (2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.

  • Marginal note:Examination and recommendation

    (3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.

  • Marginal note:Notice to military judge

    (4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

  • Marginal note:Inquiry held in public or private

    (5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.

  • Marginal note:Counsel

    (6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.

  • Marginal note:Recommendation to the Governor in Council

    (7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,

    • (a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of

      • (i) infirmity,

      • (ii) having been guilty of misconduct,

      • (iii) having failed in the due execution of his or her judicial duties, or

      • (iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or

    • (b) the military judge does not satisfy the physical and medical fitness standards applicable to officers.

  • Marginal note:Report

    (8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

  • 2013, c. 24, s. 45
 
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