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

Full Document:  

Act current to 2019-08-28 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Director of Military Prosecutions (continued)

Marginal note:Duties and functions

 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.

  • 1998, c. 35, s. 42

Marginal note:Preferring charges

  •  (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.

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 39

Marginal note:Referral of charge

 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

  • 1998, c. 35, s. 42

 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

 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.

  • 1998, c. 35, s. 42

Marginal note:Acting Director of Military Prosecutions

 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.

  • 1998, c. 35, s. 42

Marginal note:Relationship to Judge Advocate General

  •  (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.

  • 1998, c. 35, s. 42

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
 
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