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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 7Mental Disorder (continued)

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports (continued)

Marginal note:Definition of justice

  •  (1) In this section, justice means a justice as defined in section 2 of the Criminal Code.

  • Marginal note:Arrest without warrant for contravention of disposition

    (2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person

    • (a) is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or

    • (b) has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.

  • Marginal note:Accused person released subject to conditions

    (2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

  • Marginal note:Continued detention

    (2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe

    • (a) that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to

      • (i) establish the identity of the accused person,

      • (ii) establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),

      • (iii) prevent the commission of an offence, or

      • (iv) prevent the accused person from doing anything referred to in paragraph (2)(a) or (b); or

    • (b) that the accused person is subject to a disposition or an assessment order of a Review Board of another province.

  • Marginal note:Accused person brought before justice or commanding officer

    (2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

  • Marginal note:Justice or commanding officer not available

    (3) If a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.

  • Marginal note:Release of accused person

    (3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

  • Marginal note:Notice

    (3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

  • Marginal note:Order pending decision of Review Board

    (4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

  • Marginal note:Powers of Review Board

    (5) Where a Review Board receives a notice pursuant to subsection (4), it may exercise the powers and shall perform the duties referred to in the Criminal Code in respect of the accused person as if the Review Board were conducting a review of a disposition.

  • 1991, c. 43, s. 18
  • 2005, c. 22, ss. 56, 61(F)
  • 2013, c. 24, s. 60

Protected Statements

Marginal note:Definition of protected statement

  •  (1) In this section, protected statement means a statement made by the accused person, during the course and for the purposes of an assessment ordered under this Division or treatment directed by a disposition made under section 202, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

  • Marginal note:Protected statements not admissible against accused

    (2) No protected statement or reference to a protected statement made by an accused person is admissible in evidence, without the consent of the accused person, in any proceeding before a court, court martial, tribunal, body or person with jurisdiction to compel the production of evidence.

  • Marginal note:Exceptions

    (3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

    • (a) determining whether the accused person is unfit to stand trial;

    • (b) making a disposition or placement decision respecting the accused person;

    • (c) [Repealed, 2005, c. 22, s. 57]

    • (d) determining whether the balance of the mind of the accused person was disturbed at the time of commission of the alleged offence, where the accused person is a female charged with an offence arising out of the death of her newly-born child;

    • (e) determining whether the accused person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from responsibility by virtue of subsection 202.13(1), if the accused person puts his or her mental capacity to form the requisite intent into issue or if the prosecutor raises the issue after a finding is made of not responsible on account of mental disorder;

    • (f) challenging the credibility of an accused person in any proceeding where the testimony of the accused person is inconsistent in a material particular with a protected statement that the accused person made previously; or

    • (g) establishing the perjury of an accused person who is charged with perjury in respect of a statement made in any proceeding.

  • 1991, c. 43, s. 18
  • 1998, c. 35, s. 92
  • 2005, c. 22, s. 57

Provisions of Criminal Code Applicable

Marginal note:Powers of Review Boards under Criminal Code

  •  (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

  • Marginal note:Application

    (1.1) For the application of subsection (1), a reference to the attorney general of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

  • Marginal note:Application of paragraph 672.121(a) of Criminal Code

    (2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.

  • 1991, c. 43, s. 18
  • 2005, c. 22, s. 58
  • 2013, c. 24, s. 61

Marginal note:Application of ss. 672.67 to 672.71 of Criminal Code to findings

 Sections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.

  • 1991, c. 43, s. 18
  • 1998, c. 35, s. 54
  • 2005, c. 22, s. 58
 
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