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

Full Document:  

Act current to 2019-08-15 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Decisions of General Court Martial (continued)

Marginal note:Decision of panel

  •  (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

  • Marginal note:Decision

    (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

  • R.S., 1985, c. N-5, s. 192
  • 1992, c. 16, s. 11
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

Marginal note:Disagreement of panel

  •  (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.

  • Marginal note:Dissolution of court martial

    (2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.

  • 2008, c. 29, s. 14

Marginal note:Sentence

 The military judge presiding at a General Court Martial determines the sentence.

  • R.S., 1985, c. N-5, s. 193
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

Similar Offences

Marginal note:Similar offences may be considered in imposing sentence

  •  (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

  • Marginal note:Restriction

    (2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.

  • R.S., 1985, c. N-5, s. 194
  • 1998, c. 35, s. 46

Absconding Accused

Marginal note:Accused absconding during court martial

  •  (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.

  • Marginal note:Continuing or adjourning court martial

    (2) A military judge presiding at the court martial of an accused person who absconds may

    • (a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or

    • (b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.

  • Marginal note:Continuing court martial

    (3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.

  • Marginal note:Adverse inference

    (4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.

  • Marginal note:Accused not entitled to reopening

    (5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.

  • Marginal note:Counsel for accused person may continue to act

    (6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.

  • 2013, c. 24, s. 54

Pronouncement of Findings and Sentence

Marginal note:Manner and effective date of pronouncement

 The finding and sentence of a court martial shall, at the conclusion of the trial of the offender so sentenced, be pronounced in open court to the offender, who shall be under the sentence as of the date of the pronouncement thereof.

  • R.S., c. N-4, s. 170

Death or Incapacity

Marginal note:Death or incapacity to continue of judge

  •  (1) Where the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the “replacement judge”, assigned by the Chief Military Judge.

  • Marginal note:When finding not pronounced

    (2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge

    • (a) in the case of a General Court Martial, may order that the court martial

      • (i) continue from the stage at which it was when it was deemed to be adjourned, or

      • (ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and

    • (b) in the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced.

  • Marginal note:Adjudications and evidence

    (3) In the case of a court martial continued under subparagraph (2)(a)(i),

    • (a) if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; and

    • (b) if any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.

  • Marginal note:When finding pronounced

    (4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.

  • R.S., 1985, c. N-5, s. 196
  • 1998, c. 35, s. 47
  • 2008, c. 29, s. 15

Marginal note:Dissolution

  •  (1) If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.

  • Marginal note:Illness of accused

    (2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.

  • Marginal note:Unfit to stand trial

    (3) Where a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.

  • Marginal note:Effect of dissolution

    (4) Where a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.

  • 1998, c. 35, s. 47
  • 2008, c. 29, s. 16

DIVISION 6.1Forensic DNA Analysis

Marginal note:Definitions

 The definitions in this section apply in this Division.

Commissioner

Commissioner means the Commissioner of the Royal Canadian Mounted Police. (commissaire)

designated offence

designated offence means a primary designated offence or a secondary designated offence. (infraction désignée)

DNA

DNA means deoxyribonucleic acid. (ADN)

DNA profile

DNA profile means the results of forensic DNA analysis. (profil d’identification génétique)

forensic DNA analysis

forensic DNA analysis

  • (a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and

  • (b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance. (analyse génétique)

peace officer

peace officer means

  • (a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or

  • (b) an officer or a non-commissioned member of the Canadian Forces who is

    • (i) a member of the military police, or

    • (ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer. (agent de la paix)

prescribed form

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

primary designated offence

primary designated offence means

  • (a) an offence within the meaning of paragraphs (a) and (c.02) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

  • (a.1) an offence within the meaning of any of paragraphs (a.1) to (c.01), (c.03) and (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and

  • (b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.03) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130. (infraction primaire)

secondary designated offence

secondary designated offence means

  • (a) an offence within the meaning of any of paragraphs (a) to (d.2) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

  • (b) an offence under any of the following provisions of this Act:

    • (i) paragraph 77(a) (violence to person bringing materiel to forces),

    • (ii) section 79 (mutiny with violence),

    • (iii) section 84 (striking a superior officer),

    • (iv) paragraph 87(b) (violence while in custody),

    • (v) section 95 (striking a subordinate),

    • (vi) paragraph 107(a) (endangering a person on an aircraft), or

    • (vii) section 127 (handling of dangerous substances); and

  • (c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b). (infraction secondaire)

  • 2000, c. 10, s. 1
  • 2005, c. 25, s. 23
  • 2007, c. 22, ss. 35, 48
  • 2010, c. 17, s. 46
  • 2013, c. 24, s. 55
  • 2014, c. 25, s. 36
  • 2018, c. 21, s. 44
 
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