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

Full Document:  

Act current to 2019-07-01 and last amended on 2019-06-21. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Rules of Evidence (continued)

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

Evidence on Commission

Marginal note:Appointment of commissioner to take evidence

  •  (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martial

    • (a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

    • (b) who is absent from the country in which the trial is held; or

    • (c) whose attendance is not readily obtainable for a good and sufficient reason.

  • Marginal note:Admissibility of commission evidence

    (2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.

  • Marginal note:Power to require personal attendance of witness

    (3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

  • Marginal note:Representation, examination and cross-examination before commissioner

    (4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.

  • R.S., 1985, c. N-5, s. 184
  • 1998, c. 35, s. 45
  • 2013, c. 24, s. 53

Marginal note:Copy to accused

 The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).

  • R.S., c. N-4, s. 161

Objections

Marginal note:Objections

  •  (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.

  • Marginal note:Replacements

    (2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.

  • R.S., 1985, c. N-5, s. 186
  • 1998, c. 35, s. 46

Preliminary Proceedings

Marginal note:Preliminary proceedings

 At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.

  • R.S., 1985, c. N-5, s. 187
  • 1992, c. 16, s. 9
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 13

Amendment of Charges

Marginal note:Amendment if defence not prejudiced

  •  (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person’s defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.

  • Marginal note:Adjournment on amendment of charge

    (2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.

  • Marginal note:Minute of amendment

    (3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.

  • R.S., 1985, c. N-5, s. 188
  • 1998, c. 35, s. 46

Adjournments

Marginal note:Adjournment

 A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.

  • R.S., 1985, c. N-5, s. 189
  • 1998, c. 35, s. 46

Views

Marginal note:Authority for viewing

 A court martial may view any place, thing or person.

  • R.S., 1985, c. N-5, s. 190
  • 1991, c. 43, s. 17
  • 1992, c. 16, s. 10
  • 1998, c. 35, s. 46

Decisions of General Court Martial

Marginal note:Questions of law

 The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.

  • R.S., 1985, c. N-5, s. 191
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

Marginal note:Plea of guilty

 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.

  • 2008, c. 29, s. 14
 
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