Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

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 7.1Sentencing

Interpretation

Marginal note:Definitions

 The following definitions apply in this Division.

common-law partner

common-law partner means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)

victim

victim, in relation to an offence, means

  • (a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

  • (b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1), the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants. (victime)

  • R.S., 1985, c. N-5, s. 203
  • 1998, c. 35, s. 55
  • 2013, c. 24, s. 62

Purposes and Principles of Sentencing by Service Tribunals

Marginal note:Fundamental purposes of sentencing

  •  (1) The fundamental purposes of sentencing are

    • (a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

    • (b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

  • Marginal note:Objectives

    (2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:

    • (a) to promote a habit of obedience to lawful commands and orders;

    • (b) to maintain public trust in the Canadian Forces as a disciplined armed force;

    • (c) to denounce unlawful conduct;

    • (d) to deter offenders and other persons from committing offences;

    • (e) to assist in rehabilitating offenders;

    • (f) to assist in reintegrating offenders into military service;

    • (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

    • (h) to provide reparations for harm done to victims or to the community; and

    • (i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

  • 2013, c. 24, s. 62

Marginal note:Fundamental principle of sentencing

 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

  • 2013, c. 24, s. 62

Marginal note:Other sentencing principles

 A service tribunal that imposes a sentence shall also take into consideration the following principles:

  • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

    • (i) the offender, in committing the offence, abused their rank or other position of trust or authority,

    • (ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

    • (iii) the offender, in committing the offence, abused their spouse or common-law partner,

    • (iv) the offender, in committing the offence, abused a person under the age of 18 years,

    • (v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

    • (vi) the offence was committed in a theatre of hostilities,

    • (vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

    • (viii) the offence was a terrorism offence;

  • (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

  • (c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;

  • (c.1) all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders;

  • (d) a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces; and

  • (e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

  • 2013, c. 24, s. 62
  • 2019, c. 15, s. 63

Marginal note:Abuse of persons under age of 18

 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

  • 2013, c. 24, s. 62

Facts Relevant to the Determination of a Sentence

Marginal note:Disputed facts

  •  (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

    • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

    • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

    • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

  • Marginal note:Panel

    (2) In the case of a General Court Martial, the court martial

    • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

    • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

  • 2013, c. 24, s. 62

Victim Impact Statement

Marginal note:Duty to consider victim impact statement

  •  (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

  • Marginal note:Procedure

    (2) A victim’s statement must be prepared in the form, and submitted in accordance with the procedures, provided for by regulations made by the Governor in Council.

  • Marginal note:Presentation of statement

    (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit them to read their statement or to present the statement in any other manner that the court martial considers appropriate.

  • Marginal note:Evidence concerning victim admissible

    (4) Whether or not a statement has been prepared and submitted, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.

  • 2013, c. 24, s. 62

Marginal note:Inquiry by court martial

  •  (1) As soon as feasible after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

  • Marginal note:Adjournment

    (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

  • 2013, c. 24, s. 62
 
Date modified: