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

Full Document:  

Act current to 2019-09-10 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 7.1Sentencing (continued)

Absolute Discharge

Marginal note:Absolute discharge

  •  (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

  • Marginal note:Effect of discharge

    (2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

    • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

    • (b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

    • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

  • Marginal note:References to section 730 of Criminal Code

    (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

  • 2013, c. 24, s. 62

Restitution

Marginal note:Restitution order

 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

  • (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

  • (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

  • (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

  • 2013, c. 24, s. 62

Marginal note:Enforcing restitution order

 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

  • 2013, c. 24, s. 62

Marginal note:Moneys found on offender

 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the offender’s possession and seized at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.

  • 2013, c. 24, s. 62

Marginal note:Notice of orders of restitution

 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

  • 2013, c. 24, s. 62

Marginal note:Civil remedy not affected

 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

  • 2013, c. 24, s. 62

Passing of Sentence

Marginal note:Only one sentence to be passed

 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

  • 2013, c. 24, s. 62

DIVISION 8Provisions Applicable to Imprisonment and Detention

Computation of Term

Marginal note:Commencement of term

  •  (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the service tribunal pronounces sentence on the offender.

  • Marginal note:Time counted

    (2) The only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.

  • Marginal note:Special case

    (3) Where a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.

  • R.S., 1985, c. N-5, s. 204
  • 1998, c. 35, s. 57
  • 2013, c. 24, s. 63

Service Prisons and Detention Barracks

Marginal note:Service prisons and detention barracks

  •  (1) Such places as are designated by the Minister for the purpose shall be service prisons and detention barracks and any hospital or other place for the reception of sick persons to which a person who is a service convict, service prisoner or service detainee has been admitted shall, in so far as relates to that person, be deemed to be part of the place to which that person has been committed.

  • Marginal note:Corrective disciplinary measures for service prisons and detention barracks

    (2) The nature of and the manner of imposing corrective measures for breach of the regulations, orders and rules applicable in respect of service prisons and detention barracks by a person committed thereto as the result of a sentence passed on that person, and the terms and conditions of remission for good conduct of any part of a punishment involving incarceration, shall be as prescribed in regulations made by the Governor in Council.

  • Marginal note:Limitations

    (3) Corrective measures referred to in subsection (2) shall not include whipping, paddling or any of the punishments referred to in paragraphs 139(1)(a) to (l) and shall not be so imposed as to increase the duration of any punishment involving a term of incarceration.

  • R.S., c. N-4, s. 177

 [Repealed, 1998, c. 35, s. 59]

Suspension of Imprisonment or Detention

Marginal note:Suspension of execution of punishment

  •  (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.

  • Marginal note:Conditions

    (2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

    • (a) to keep the peace and be of good behaviour;

    • (b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in any of paragraphs 215.2(1)(a) to (c); and

    • (c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

  • Marginal note:Other conditions

    (3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

  • Marginal note:Term if suspended punishment put into execution

    (4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the day on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following the pronouncement of the sentence.

  • R.S., 1985, c. N-5, s. 215
  • 1998, c. 35, s. 60
  • 2013, c. 24, s. 64
 
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