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

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Act current to 2022-05-02 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 8Provisions Applicable to Imprisonment and Detention (continued)

Suspension of Imprisonment or Detention (continued)

Marginal note:Hearing into breach of conditions

  •  (1) 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 section 215 may be made by

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

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

    • (c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.

  • Marginal note:Revocation of suspension or changes to conditions

    (2) If a person referred to in any of paragraphs (1)(a) to (c) 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 suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

    • (b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.

  • 2013, c. 24, s. 64

Marginal note:Non-appearance of accused person

 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.

  • 2013, c. 24, s. 64

Marginal note:Definition of suspending authority

  •  (1) In this section and section 217, suspending authority means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.

  • Marginal note:Suspension of imprisonment or detention

    (2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.

  • Marginal note:Notification

    (2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.

  • Marginal note:Committal after suspension

    (2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.

  • Marginal note:Committing authority may postpone committal

    (3) Where an offender has been sentenced to imprisonment or detention and suspension of the punishment has been recommended, the authority empowered to commit the offender to a penitentiary, civil prison, service prison or detention barrack, as the case may be, may postpone committal until directions of a suspending authority have been obtained.

  • Marginal note:Mandatory suspension of detention

    (4) A suspending authority shall suspend a punishment of detention in the circumstances prescribed by the Governor in Council in regulations.

  • R.S., 1985, c. N-5, s. 216
  • 1998, c. 35, s. 60
  • 2013, c. 24, s. 65

Marginal note:Effect of suspension before committal

  •  (1) Where a punishment is suspended before committal to undergo the punishment, the offender shall, if in custody, be discharged from custody and the term of the punishment shall not commence until the offender has been ordered to be committed to undergo that punishment.

  • Marginal note:Effect of suspension after committal

    (2) Where a punishment is suspended after committal to undergo the punishment, the offender shall be discharged from the place in which the offender is incarcerated and the currency of the punishment shall be arrested after the day of that discharge until the offender is again ordered to be committed to undergo that punishment.

  • 1998, c. 35, s. 60

Marginal note:Review and remission

  •  (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

  • Marginal note:Automatic remission of punishments

    (2) A punishment, except a punishment referred to in subsection (3), that has been suspended shall be deemed to be wholly remitted on the expiration of a period, commencing on the day the suspension was ordered, equal to the term of the punishment less any time during which the offender has been incarcerated following pronouncement of the sentence, unless the punishment has been put into execution prior to the expiration of that period.

  • Marginal note:Automatic remission of detention

    (3) A punishment of detention that has been suspended is deemed to be wholly remitted on the expiration of one year commencing on the day the suspension was ordered, unless the punishment has been put into execution prior to the expiration of that period.

  • R.S., 1985, c. N-5, s. 217
  • 1998, c. 35, s. 61
  • 2013, c. 24, s. 66

 [Repealed, 2013, c. 24, s. 67]

Committal to Imprisonment or Detention

Marginal note:Committing authority

  •  (1) The Minister may prescribe or appoint authorities for the purposes of this section and section 220 and, in this section and section 220, an authority prescribed or appointed under this subsection is referred to as a committing authority.

  • Marginal note:Warrants for committal

    (2) A committal order, in such form as is prescribed in regulations, made by a committing authority is a sufficient warrant for the committal of a service convict, service prisoner or service detainee to any lawful place of confinement.

  • Marginal note:Authority for transfer

    (3) A committing authority may, by warrant, order that a service convict, service prisoner or service detainee be transferred, from the place to which that convict, prisoner or detainee has been committed to undergo punishment, to any other place in which that punishment may lawfully be put into execution.

  • Marginal note:Custody pending delivery on committal and during transfer

    (4) A service convict, service prisoner or service detainee, until delivered to the place where that convict, prisoner or detainee is to undergo punishment or while being transferred from one such place to another such place, may be held in any place, either in service custody or in civil custody, or at one time in service custody and at another time in civil custody, as occasion may require, and may be transferred from place to place by any mode of conveyance, under such restraint as is necessary for the safe conduct of that convict, prisoner or detainee.

  • R.S., c. N-4, s. 187

Marginal note:Committal of service convicts

  •  (1) A service convict whose punishment of imprisonment for life or for two years or more is to be put into execution shall as soon as practicable be committed to a penitentiary to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service convict be committed to a service prison to undergo the punishment or any part of the punishment.

  • Marginal note:Committal when unexpired term less than two years

    (2) Where a committing authority orders the committal to a penitentiary of a service convict, part of whose punishment has been undergone in a service prison, the service convict may be so committed notwithstanding that the unexpired portion of the term of that punishment is less than two years.

  • Marginal note:Committal of service prisoners

    (3) A service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon as practicable be committed to a civil prison to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punishment or part thereof.

  • Marginal note:Committal of service detainees

    (4) A service detainee whose punishment of detention is to be put into execution shall as soon as practicable be committed to a detention barrack to undergo the punishment.

  • R.S., 1985, c. N-5, s. 220
  • 1998, c. 35, s. 62

Temporary Removal from Incarceration

Marginal note:Authority for temporary removal

 Where the exigencies of the service so require, a service convict, service prisoner or service detainee may, by an order made by a committing authority referred to in section 219 or 220, be removed temporarily from the place to which he has been committed for such period as may be specified in that order but, until returned to that place, any person removed pursuant to this section shall be retained in service custody or civil custody, as occasion may require, and no further committal order is necessary on the return of the person to that place.

  • R.S., c. N-4, s. 188

Rules Applicable to Service Convicts and Service Prisoners

Marginal note:Rules of penitentiaries and civil prisons to apply

  •  (1) A service convict, while undergoing punishment in a penitentiary, or a service prisoner, while undergoing punishment in a civil prison, shall be dealt with in the same manner as other prisoners in the place where that convict or prisoner is undergoing punishment, and all rules applicable in respect of a person sentenced by a civil court to imprisonment in a penitentiary or civil prison, as the case may be, in so far as circumstances permit, apply accordingly.

  • Marginal note:Jurisdiction and discretion of Parole Board of Canada

    (2) Where the punishment of a service convict undergoing punishment in a penitentiary or a service prisoner undergoing punishment in a civil prison is not suspended, mitigated, commuted or remitted under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant or revoke the parole of that convict or prisoner.

  • R.S., 1985, c. N-5, s. 222
  • 1992, c. 20, s. 215
  • 1998, c. 35, s. 63
  • 2012, c. 1, s. 160

Validity of Documents

Marginal note:Legalization and rectification

 The custody of a service convict, service prisoner or service detainee is not illegal by reason only of informality or error in or in respect of a document containing a warrant, order or direction issued in pursuance of this Act, or by reason only that the document deviates from the prescribed form, and any such document may be amended appropriately at any time by the authority that issued it in the first instance or by any other authority empowered to issue documents of the same nature.

  • R.S., c. N-4, s. 190

Mental Disorder during Imprisonment or Detention

Marginal note:Persons in penitentiaries or civil prisons

 A service convict or service prisoner who, having been released from the Canadian Forces, is suffering from a mental disorder while undergoing punishment in a penitentiary or civil prison shall be treated in the same manner as if the convict or prisoner were a person undergoing a term of imprisonment in the penitentiary or civil prison by virtue of the sentence of a civil court.

  • R.S., 1985, c. N-5, s. 224
  • 1991, c. 43, s. 20

 [Repealed, 1991, c. 43, s. 20]

Transfer of Offenders

Marginal note:Transfer of offenders

  •  (1) A person who has been found guilty of an offence by a civil court in Canada or by a civil or military tribunal of any country other than Canada and sentenced to a term of incarceration may, with the approval of the Chief of the Defence Staff or an officer designated by the Chief of the Defence Staff, be transferred to the custody of the appropriate civil or military authorities of Canada for incarceration under this Act.

  • Marginal note:Imprisonment or detention of offenders transferred

    (2) A person transferred under subsection (1) may, in lieu of the incarceration to which that person was sentenced, be imprisoned or detained for the term or the remainder of the term of incarceration to which he was sentenced as though that person had been sentenced to that term by a service tribunal, and the provisions of this Division are applicable in respect of every person so transferred as though the person had been so sentenced.

  • Marginal note:Restriction

    (3) A person who has been found guilty of an offence by a civil court in Canada shall not,

    • (a) if sentenced by the civil court to a term of less than two years, be transferred under subsection (1) without the consent of the attorney general of the province in which that person is incarcerated; or

    • (b) if sentenced by the civil court to imprisonment for life or a term of two years or more, be transferred under subsection (1) without the consent of the Attorney General of Canada.

  • R.S., 1985, c. N-5, s. 226
  • 1998, c. 35, ss. 64, 92

Parole Eligibility

Marginal note:Sentence of imprisonment for life

  •  (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:

    • (a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or

    • (e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.

  • Marginal note:Provisions of Criminal Code apply

    (2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of imprisonment for life that is imposed under this Act, and for that purpose

    • (a) a reference in sections 745.2 to 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and

    • (b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.

  • 2013, c. 24, ss. 68, 132

Marginal note:Power of court martial to delay parole

  •  (1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

  • Marginal note:Condition

    (2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.

  • Marginal note:Criminal organization offences

    (3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

  • Marginal note:Power of court martial to delay parole

    (4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

  • Marginal note:Objectives

    (5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.

  • 2013, c. 24, s. 68
 
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