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

Short Title

Marginal note:Short title

1 This Act may be cited as the National Defence Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  aircraft

  aircraft means flying machines and guided missiles that derive their lift in flight chiefly from aerodynamic forces, and flying devices that are supported chiefly by their buoyancy in air, and includes any aeroplane, balloon, kite balloon, airship, glider or kite; (aéronef)

  aircraft material

  aircraft material means engines, fittings, armament, ammunition, bombs, missiles, gear, instruments and apparatus, used or intended for use in connection with aircraft or the operation thereof, and components and accessories of aircraft and substances used to provide motive power or lubrication for or in connection with aircraft or the operation thereof; (matériel aéronautique)

  civil court

  civil court means a court of ordinary criminal jurisdiction in Canada and includes a court of summary jurisdiction; (tribunal civil)

  civil custody

  civil custody means the holding under arrest or in confinement of a person by the police or other competent civil authority, and includes confinement in a penitentiary or civil prison; (garde civile)

  civil prison

  civil prison means any prison, jail or other place in Canada in which offenders sentenced by a civil court in Canada to imprisonment for less than two years can be confined, and, if sentenced outside Canada, any prison, jail or other place in which a person, sentenced to that term of imprisonment by a civil court having jurisdiction in the place where the sentence was passed, can for the time being be confined; (prison civile)

  Code of Service Discipline

  Code of Service Discipline means the provisions of Part III; (code de discipline militaire)

  court martial

  court martial includes a General Court Martial and a Standing Court Martial; (cour martiale)

  Court Martial Appeal Court

  Court Martial Appeal Court means the Court Martial Appeal Court of Canada established by section 234; (Cour d’appel de la cour martiale)

  criminal organization

  criminal organization has the same meaning as in subsection 467.1(1) of the Criminal Code; (organisation criminelle)

  criminal organization offence

  criminal organization offence means

  • (a) an offence under section 467.11, 467.111, 467.12 or 467.13 of the Criminal Code, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or

  • (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); (infraction d’organisation criminelle)

  defence establishment

  defence establishment means any area or structure under the control of the Minister, and the materiel and other things situated in or on any such area or structure; (établissement de défense)

  Department

  Department means the Department of National Defence; (ministère)

  Deputy Minister

  Deputy Minister means the Deputy Minister of National Defence; (sous-ministre)

  detention barrack

  detention barrack means a place designated as such under subsection 205(1); (caserne disciplinaire)

  emergency

  emergency means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended; (état d’urgence)

  enemy

  enemy includes armed mutineers, armed rebels, armed rioters and pirates; (ennemi)

  enrol

  enrol means to cause any person to become a member of the Canadian Forces; (Version anglaise seulement)

  finding of not responsible on account of mental disorder

  finding of not responsible on account of mental disorder means a finding made under subsection 202.14(1); (verdict de non-responsabilité pour cause de troubles mentaux)

  Grievance Board

  Grievance Board[Repealed, 2013, c. 24, s. 2]

  Grievances Committee

  Grievances Committee means the Military Grievances External Review Committee continued by subsection 29.16(1); (Comité des griefs)

  Her Majesty’s Canadian Ship

  Her Majesty’s Canadian Ship means any vessel of the Canadian Forces commissioned as a vessel of war; (navire canadien de Sa Majesté)

  Her Majesty’s Forces

  Her Majesty’s Forces means the armed forces of Her Majesty wherever raised, and includes the Canadian Forces; (forces de Sa Majesté)

  man

  man[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 42]

  materiel

  materiel means all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under this Act, and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided; (matériels)

  mental disorder

  mental disorder means a disease of the mind; (troubles mentaux)

  military

  military shall be construed as relating to all or any part of the Canadian Forces; (militaire)

  military judge

  military judge includes a reserve force military judge; (juge militaire)

  military justice

  military justice means all aspects of the application of the Code of Service Discipline; (justice militaire)

  military justice system participant

  military justice system participant means a person who plays a role in the administration of military justice, including

  • (a) the Minister,

  • (b) the Judge Advocate General,

  • (c) an officer and non-commissioned member who acts under the supervision of the Judge Advocate General,

  • (d) a prosecutor and counsel for an accused person,

  • (e) a military judge,

  • (f) a superior commander, a commanding officer and a delegated officer, as defined in section 162.3,

  • (g) a custody review officer, as defined in section 153,

  • (h) a member of a panel of a General Court Martial and an officer and non-commissioned member who has been appointed to be a member of a such a panel,

  • (i) an officer and non-commissioned member who is appointed by a commanding officer for the purpose of supporting a court martial,

  • (j) an officer and non-commissioned member who is authorized to lay or refer a charge,

  • (k) a prospective witness, a witness who has been summoned to appear and a witness who has testified,

  • (l) an officer and non-commissioned member referred to in paragraph (g) of the definition peace officer in section 2 of the Criminal Code,

  • (m) a commanding officer of a service prison or detention barrack and a person who acts under the supervision of such a commanding officer, and

  • (n) a person who acts under the supervision of the Chief Military Judge or the Court Martial Administrator; (personne associée au système de justice militaire)

  military police

  military police means the officers and non-commissioned members appointed under regulations made for the purposes of section 156; (police militaire)

  Minister

  Minister means the Minister of National Defence; (ministre)

  mutiny

  mutiny means collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith; (mutinerie)

  non-commissioned member

  non-commissioned member means any person, other than an officer, who is enrolled in, or who pursuant to law is attached or seconded otherwise than as an officer to, the Canadian Forces; (militaire du rang)

  non-public property

  non-public property means

  • (a) all money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,

  • (b) all money and property contributed to or by officers, non-commissioned members, units or other elements of the Canadian Forces for the collective benefit and welfare of those officers, non-commissioned members, units or other elements,

  • (c) by-products and refuse and the proceeds of the sale thereof to the extent prescribed under subsection 39(2), and

  • (d) all money and property derived from, purchased out of the proceeds of the sale of, or received in exchange for, money and property described in paragraphs (a) to (c); (biens non publics)

  officer

  officer means

  • (a) a person who holds Her Majesty’s commission in the Canadian Forces,

  • (b) a person who holds the rank of officer cadet in the Canadian Forces, and

  • (c) any person who pursuant to law is attached or seconded as an officer to the Canadian Forces; (officier)

  penitentiary

  penitentiary

  • (a) means a penitentiary established under Part I of the Corrections and Conditional Release Act,

  • (b) includes, in respect of any punishment of imprisonment for life or for two years or more imposed outside Canada pursuant to the Code of Service Discipline, any prison or place in which a person sentenced to imprisonment for life or for two years or more by a civil court having jurisdiction in the place where the sentence is imposed can for the time being be confined, and

  • (c) means, in any place outside Canada where there is no prison or place for the confinement of persons sentenced to imprisonment for life or for two years or more, a civil prison; (pénitencier)

  personal equipment

  personal equipment means all materiel issued to an officer or non-commissioned member for the personal wear or other personal use of that officer or non-commissioned member; (équipement personnel)

  possession

  possession[Repealed, 1995, c. 39, s. 175]

  Provost Marshal

  Provost Marshal[Repealed, 2013, c. 24, s. 2]

  public property

  public property means all money and property of Her Majesty in right of Canada; (biens publics)

  regular force

  regular force means the component of the Canadian Forces that is referred to in subsection 15(1); (force régulière)

  release

  release means the termination of the service of an officer or non-commissioned member in any manner; (libération)

  reserve force

  reserve force means the component of the Canadian Forces that is referred to in subsection 15(3); (force de réserve)

  scale of punishments

  scale of punishments means the scale of punishments as set out in subsection 139(1); (échelle des peines)

  serious offence

  serious offence means an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code; (infraction grave)

  serious personal injury offence

  serious personal injury offence means

  • (a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving

    • (i) the use or attempted use of violence against another person, or

    • (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, or

  • (b) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence; (infraction grave contre la personne)

  service convict

  service convict means a person who is under a sentence that includes a punishment of imprisonment for life or for two years or more imposed on that person pursuant to the Code of Service Discipline; (condamné militaire)

  service custody

  service custody means the holding under arrest or in confinement of a person by the Canadian Forces, and includes confinement in a service prison or detention barrack; (garde militaire)

  service detainee

  service detainee means a person who is under a sentence that includes a punishment of detention imposed on that person pursuant to the Code of Service Discipline; (détenu militaire)

  service infraction

  service infraction means a service infraction created by regulations made by the Governor in Council; (manquement d’ordre militaire)

  service offence

  service offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline; (infraction d’ordre militaire)

  service prison

  service prison means a place designated as such under subsection 205(1); (prison militaire)

  service prisoner

  service prisoner means a person who is under a sentence that includes a punishment of imprisonment for less than two years imposed on that person pursuant to the Code of Service Discipline; (prisonnier militaire)

  service tribunal

  service tribunal[Repealed, 2019, c. 15, s. 2]

  special force

  special force means such component of the Canadian Forces as may be established pursuant to subsection 16(1); (force spéciale)

  summary hearing

  summary hearing means a hearing conducted under section 163; (audience sommaire)

  summary trial

  summary trial[Repealed, 2019, c. 15, s. 2]

  superior officer

  superior officer means any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member; (supérieur)

  terrorism offence

  terrorism offence means

  • (a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code,

  • (b) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, that is committed for the benefit of, at the direction of or in association with a terrorist group,

  • (c) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes a terrorist activity, or

  • (d) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c); (infraction de terrorisme)

  terrorist activity

  terrorist activity has the same meaning as in subsection 83.01(1) of the Criminal Code; (activité terroriste)

  terrorist group

  terrorist group has the same meaning as in subsection 83.01(1) of the Criminal Code; (groupe terroriste)

  unfit to stand trial

  unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct counsel to do so, and in particular, unable on account of mental disorder to

  • (a) understand the nature or object of the proceedings,

  • (b) understand the possible consequences of the proceedings, or

  • (c) communicate with counsel; (inaptitude à subir son procès)

  unit

  unit means an individual body of the Canadian Forces that is organized as such pursuant to section 17, with the personnel and materiel thereof; (unité)

  victim

  victim means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and sections 202.201, 203.6 and 203.7, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person. (victime)

• Marginal note:Acting on victim’s behalf

  (1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:

  • (a) if the victim is dead or is incapable, other than for operational reasons, of acting on their own behalf,

    • (i) the victim’s spouse or the individual who was at the time of the victim’s death their spouse,

    • (ii) the individual who is, or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year,

    • (iii) a relative or dependant of the victim,

    • (iv) an individual who has in law or fact custody of, or is responsible for the care or support of, the victim, and

    • (v) an individual who has in law or fact custody of, or is responsible for the care or support of, a dependant of the victim; and

  • (b) if, for operational reasons, the victim is unable to act on their own behalf and has requested the appointment of a member of the Canadian Forces to act on their behalf, a member appointed by the Chief of the Defence Staff or any officer authorized by the Chief of Defence Staff.

• Marginal note:Exception — not a victim

  (1.2) An individual is not a victim in relation to a service offence, or entitled to exercise a victim’s rights under Division 1.1 of Part III, if the individual is charged with the offence, found guilty of the offence or found unfit to stand trial or not responsible on account of mental disorder in respect of the offence.

• Marginal note:Exception — acting on victim’s behalf

  (1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.

• Marginal note:Meaning of possession

  (2) For the purposes of the Code of Service Discipline and Part VII,

  • (a) a person has anything in possession when the person has it in the person’s personal possession or knowingly

    • (i) has it in the actual possession or custody of another person, or

    • (ii) has it in any place, whether or not that place belongs to or is occupied by the person, for the use or benefit of the person or of another person; and

  • (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in the person’s custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

PART IDepartment of National Defence

Establishment of the Department

Marginal note:Formation of department

3 There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.

Minister

Marginal note:Duties

4 The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for

• (a) the construction and maintenance of all defence establishments and works for the defence of Canada; and

• (b) research relating to the defence of Canada and to the development of and improvements in materiel.

Marginal note:Designation of person to execute Minister’s functions

5 The Governor in Council, on the recommendation of the Minister, may designate any other person in addition to the Minister to exercise any power or perform any duty or function that is vested in or that may be exercised or performed by the Minister under this Act.

Marginal note:Associate Minister

6 The Governor General may, by commission under the Great Seal, appoint an Associate Minister of National Defence to hold office during pleasure and to exercise and perform such powers, duties and functions of the Minister as may be assigned to the Associate Minister by the Governor in Council.

Deputy Minister

Marginal note:Appointment

7 There shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure.

Marginal note:Associate Deputy Ministers

8 The Governor in Council may appoint not more than three Associate Deputy Ministers of National Defence, each of whom shall have the rank and status of a deputy head of a department and as such shall, under the Minister and the Deputy Minister, exercise and perform such powers, duties and functions as deputy of the Minister and otherwise as the Minister may specify.

Judge Advocate General

Marginal note:Appointment

• 9 (1) The Governor in Council may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces.

• Marginal note:Tenure of office

  (2) The Judge Advocate General holds office during pleasure for a term not exceeding four years.

• Marginal note:Re-appointment

  (3) The Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Legal adviser

9.1 The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.

Marginal note:Superintendence of military justice

• 9.2 (1) The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

• Marginal note:Regular reviews

  (2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

Marginal note:Responsible to Minister

• 9.3 (1) The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.

• Marginal note:Annual report

  (2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.

• Marginal note:Tabling in Parliament

  (3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

Marginal note:Rank

9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

Marginal note:Authority to act for Judge Advocate General

10 The powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.

Marginal note:Non-derogation

10.1 For greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act.

Materiel

Marginal note:Delivery of materiel for sale or disposal

11 The Governor in Council may authorize the Minister to deliver to any department or agency of the Government of Canada, for sale or disposal to any countries or international welfare organizations and on any terms that the Governor in Council may determine, any materiel that has not been declared surplus and is not immediately required for the use of the Canadian Forces or for any other purpose under this Act.

Regulations

Marginal note:Power of Governor in Council to make regulations

• 12 (1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

• Marginal note:Minister’s power to make regulations

  (2) Subject to section 13 and any regulations made by the Governor in Council, the Minister may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

• Marginal note:Treasury Board’s power to make regulations

  (3) The Treasury Board may make regulations

  • (a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;

  • (b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

  • (c) providing for any matter concerning the pay, allowances and reimbursement of expenses of officers and non-commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.

• Marginal note:Retroactive effect

  (4) Regulations made under paragraph (3)(a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect

  • (a) in the case of an inquiry under section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or

  • (b) in the case of an inquiry under section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.

Marginal note:Limitation on Minister’s power

13 Where in any section of this Act, other than section 12, there is express reference to regulations made or prescribed by the Governor in Council or the Treasury Board in respect of any matter, the Minister does not have power to make regulations pertaining to that matter.

Marginal note:Military Police Professional Code of Conduct

13.1 The Governor in Council may make regulations, to be known as the Military Police Professional Code of Conduct, to govern the conduct of members of the military police.

PART IIThe Canadian Forces

Constitution

Marginal note:Canadian Forces

14 The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.

Marginal note:Regular force

• 15 (1) There shall be a component of the Canadian Forces, called the regular force, that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service.

• Marginal note:Composition of regular force

  (2) The maximum numbers of officers and non-commissioned members in the regular force shall be as authorized by the Governor in Council, and the regular force shall include such units and other elements as are embodied therein.

• Marginal note:Reserve force

  (3) There shall be a component of the Canadian Forces, called the reserve force, that consists of officers and non-commissioned members who are enrolled for other than continuing, full-time military service when not on active service.

• Marginal note:Composition of reserve force

  (4) The maximum numbers of officers and non-commissioned members in the reserve force shall be as authorized by the Governor in Council, and the reserve force shall include such units and other elements as are embodied therein.

Marginal note:Special force

• 16 (1) In an emergency, or if considered desirable in consequence of any action undertaken by Canada under the United Nations Charter or the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party, the Governor in Council may establish and authorize the maintenance of a component of the Canadian Forces, called the special force, consisting of

  • (a) officers and non-commissioned members of the regular force who are placed in the special force under conditions prescribed in regulations;

  • (b) officers and non-commissioned members of the reserve force who, being on active service or having applied and been accepted for continuing, full-time military service, are placed in the special force under conditions prescribed in regulations; and

  • (c) officers and non-commissioned members not of the regular force or the reserve force who are enrolled in the special force for continuing, full-time military service.

• Marginal note:Composition of special force

  (2) The maximum numbers of officers and non-commissioned members in the special force shall be as authorized by the Governor in Council, and the special force shall include such units and other elements as are embodied therein.

Units and Other Elements

Marginal note:Organization

• 17 (1) The Canadian Forces shall consist of those of the following elements that are from time to time organized by or under the authority of the Minister:

  • (a) commands, including the Royal Canadian Navy, the Canadian Army and the Royal Canadian Air Force;

  • (b) formations;

  • (c) units; and

  • (d) other elements.

• Marginal note:Components

  (2) A unit or other element organized under subsection (1), other than a command or a formation, shall from time to time be embodied in a component of the Canadian Forces as directed by or under the authority of the Minister.

Chief of the Defence Staff

Marginal note:Appointment, rank and duties of Chief of Defence Staff

• 18 (1) The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.

• Marginal note:Responsibility and channels of communication

  (2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.

Marginal note:Vice Chief of the Defence Staff

18.1 There shall be an officer appointed by the Chief of the Defence Staff to be the Vice Chief of the Defence Staff.

Marginal note:Absence or incapacity of Chief of the Defence Staff

18.2 In the event of the absence or incapacity of the Chief of the Defence Staff, the Vice Chief of the Defence Staff, or any other officer that is specified by the Minister or the Chief of the Defence Staff, has the control and administration of the Canadian Forces.

Canadian Forces Provost Marshal

Marginal note:Appointment

• 18.3 (1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).

• Marginal note:Rank

  (2) The Provost Marshal holds a rank that is not less than colonel.

• Marginal note:Tenure of office and removal

  (3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

• Marginal note:Powers of inquiry committee

  (4) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Reappointment

  (5) The Provost Marshal is eligible to be reappointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

18.4 The Provost Marshal’s responsibilities include

• (a) investigations conducted by any unit or other element under his or her command;

• (b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

• (c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

• (d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

Marginal note:General supervision

• 18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

• Marginal note:General instructions or guidelines

  (2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

• Marginal note:Specific instructions or guidelines

  (3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

• Marginal note:Availability to public

  (4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

• Marginal note:Exception

  (5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

Marginal note:Annual report

18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.

Powers of Command

Marginal note:Authority of officers and non-commissioned members

19 The authority and powers of command of officers and non-commissioned members shall be as prescribed in regulations.

Enrolment

Marginal note:Commissioned officers

• 20 (1) Commissions of officers in the Canadian Forces shall be granted by Her Majesty during pleasure.

• Marginal note:Officer cadets and non-commissioned members

  (2) Persons shall be enrolled as officer cadets or as non-commissioned members for indefinite or fixed periods of service as may be prescribed in regulations made by the Governor in Council.

• Marginal note:When consent of parent or guardian required

  (3) A person under the age of eighteen years shall not be enrolled without the consent of one of the parents or of the guardian of that person.

Marginal note:Ranks of officers and non-commissioned members

• 21 (1) For the purposes of this Act, the ranks of the officers and non-commissioned members of the Canadian Forces shall be as set out in the schedule.

• Marginal note:Designation

  (2) A person holding a rank set out in the schedule shall use, or be referred to by, a designation of rank prescribed in regulations made by the Governor in Council but only in the circumstances prescribed in those regulations.

Marginal note:Numbers in ranks and trade groups

22 The maximum number of persons in each rank and trade group of the Canadian Forces shall be determined as prescribed in regulations made by the Governor in Council.

Marginal note:Obligation to serve

• 23 (1) The enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.

• Marginal note:Oaths and declarations on enrolment

  (2) Oaths and declarations required on enrolment shall be taken and subscribed before commissioned officers or justices of the peace and shall be in such forms as may be prescribed in regulations.

Marginal note:Consent to transfer

24 No officer or non-commissioned member shall be transferred from the regular force to the reserve force or from the reserve force to the regular force unless the officer or non-commissioned member consents to the transfer.

Marginal note:Effect of receipt of pay if not enrolled

25 A person who, although not enrolled or re-engaged for service, has received pay as an officer or non-commissioned member is, until the person claims to be released and is released, deemed to be an officer or non-commissioned member, as the case may be, of that component of the Canadian Forces through which the pay was received and to be subject to this Act as if the person were such an officer or non-commissioned member duly enrolled or re-engaged for service.

Marginal note:Effect of receipt of pay if irregularly enrolled

• 26 (1) A person who, although erroneously or irregularly enrolled or re-engaged, has received pay as an officer or non-commissioned member of that component of the Canadian Forces in which the person was so enrolled or re-engaged, is deemed to be an officer or non-commissioned member, as the case may be, regularly enrolled or re-engaged, and is not, except as provided in subsection (2), entitled to be released on the ground of the error or irregularity.

• Marginal note:Provision for release

  (2) A person who is, by virtue of subsection (1), deemed to be an officer or non-commissioned member and who claims to be released within three months after the date of commencement of the pay and establishes the error or irregularity referred to in that subsection shall, except when on active service or during an emergency, be released.

• Marginal note:Method of release

  (3) The commanding officer of a person who claims to be released on the ground of not having been enrolled or re-engaged, or not having been regularly enrolled or re-engaged, shall forthwith forward the claim to the authority having power to effect the release and the person, if entitled to be released, shall be released with all convenient speed.

Attachment and Secondment

Marginal note:Manner and conditions of attachment and secondment

27 An officer or non-commissioned member may be attached or seconded to another component of the Canadian Forces or to any department or agency of government, any public or private institution, private industry or any other body in such manner and under such conditions as are prescribed in any other Act or in regulations, but no officer or non-commissioned member of the reserve force who is not on active service shall be attached or seconded pursuant to this section unless the officer or non-commissioned member consents to the attachment or secondment.

Promotion

Marginal note:Authority to promote

28 Subject to section 22 and to regulations, officers and non-commissioned members may be promoted by the Minister or by such authorities of the Canadian Forces as are prescribed in regulations made by the Governor in Council.

Grievances

Marginal note:Right to grieve

• 29 (1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

• Marginal note:Exceptions

  (2) There is no right to grieve in respect of

  • (a) a decision of a court martial or the Court Martial Appeal Court;

  • (b) a decision of a board, commission, court or tribunal established other than under this Act; or

  • (c) a matter or case prescribed by the Governor in Council in regulations.

• Marginal note:Military judges

  (2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.

• Marginal note:Manner and conditions

  (3) A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

• Marginal note:No penalty for grievance

  (4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

• Marginal note:Correction of error

  (5) Notwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.

Marginal note:Authorities for determination of grievances

• 29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

• Marginal note:Different authorities

  (2) The regulations may provide that different types of grievances may be considered and determined by different authorities.

Marginal note:Grievances submitted by military judges

29.101 Despite subsection 29.1(1), a grievance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.

Marginal note:Final authority

29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:Referral to Grievances Committee

• 29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.

• Marginal note:Material to be provided to Board

  (2) When referring a grievance to the Grievances Committee, the Chief of the Defence Staff shall provide the Grievances Committee with a copy of

  • (a) the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

  • (b) any decision made by an authority in respect of the grievance; and

  • (c) any other information under the control of the Canadian Forces that is relevant to the grievance.

Marginal note:Chief of the Defence Staff not bound

• 29.13 (1) The Chief of the Defence Staff is not bound by any finding or recommendation of the Grievances Committee.

• Marginal note:Reasons

  (2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if

  • (a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or

  • (b) the grievance was submitted by a military judge.

Marginal note:Delegation

• 29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that

  • (a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and

  • (b) a grievance submitted by a military judge may not be delegated.

• Marginal note:Conflict of interest

  (2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.

• Marginal note:Subdelegation

  (3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).

Marginal note:Decision is final

29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

Military Grievances External Review Committee

Marginal note:Grievances Committee

• 29.16 (1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

• Marginal note:Full- or part-time

  (2) The Chairperson and one Vice-Chairperson are each full-time members and the other members may be appointed as full-time or part-time members.

• Marginal note:Tenure and removal

  (3) Each member holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.

• Marginal note:Re-appointment

  (4) A member is eligible to be re-appointed on the expiry of a first or subsequent term of office.

• Marginal note:Duties of full-time members

  (5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

• Marginal note:Conflict of interest — part-time members

  (6) Part-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.

• Marginal note:Remuneration

  (7) Members who are not officers or non-commissioned members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.

• Marginal note:Travel and living expenses

  (8) Members who are not officers or non-commissioned members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.

• Marginal note:Status of members

  (9) Members who are not officers or non-commissioned members are deemed

  • (a) to be employed in the public service for the purposes of the Public Service Superannuation Act;

  • (b) to be employees for the purposes of the Government Employees Compensation Act; and

  • (c) to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

• Marginal note:Secondment

  (10) An officer or a non-commissioned member who is appointed as a member of the Grievances Committee shall be seconded to the Grievances Committee in accordance with section 27.

• Marginal note:Oath of office

  (11) Every member shall, before commencing the duties of office, take the following oath of office:

  I, , do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

Marginal note:Chairperson

• 29.17 (1) The Chairperson is the chief executive officer of the Grievances Committee and has supervision over and direction of its work and staff.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the Chairperson or if that office is vacant, the Minister may authorize a Vice-Chairperson to exercise the powers and perform the duties and functions of the Chairperson.

• Marginal note:Delegation

  (3) The Chairperson may delegate to a Vice-Chairperson any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 29.28(1).

Marginal note:Head office

29.18 The head office of the Grievances Committee shall be at the place in Canada designated by the Governor in Council.

Marginal note:Staff

• 29.19 (1) The employees that are necessary for the proper conduct of the work of the Grievances Committee shall be appointed in accordance with the Public Service Employment Act.

• Marginal note:Experts

  (2) The Grievances Committee may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Grievances Committee in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.

Marginal note:Duties and functions

• 29.2 (1) The Grievances Committee shall review every grievance referred to it by the Chief of the Defence Staff and provide its findings and recommendations in writing to the Chief of the Defence Staff and the officer or non-commissioned member who submitted the grievance.

• Marginal note:Duty to act expeditiously

  (2) The Grievances Committee shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:Powers

29.21 The Grievances Committee has, in relation to the review of a grievance referred to it, the power

• (a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

• (b) to administer oaths; and

• (c) to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

Marginal note:Restriction

29.22 The Grievances Committee may not receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.

Marginal note:Witness not excused from testifying

• 29.23 (1) No witness shall be excused from answering any question relating to a grievance before the Grievances Committee when required to do so by the Grievances Committee on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

• Marginal note:Answer not receivable

  (2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

Marginal note:Expenses

29.24 Travel and living expenses incurred in appearing before the Grievances Committee shall, in the discretion of the Grievances Committee, be paid, in accordance with applicable Treasury Board directives, to the officer or non-commissioned member whose grievance is being heard, and to that person’s assisting officer or counsel, if the Grievances Committee holds a hearing at a place in Canada that is not their ordinary place of residence.

Marginal note:Return of documents, etc.

29.25 Documents and things presented to the Grievances Committee at a hearing shall, on request, be returned to the person who presented them within a reasonable time after the Grievances Committee has provided its findings and recommendations to the Chief of the Defence Staff.

Marginal note:Rules

• 29.26 (1) The Chairperson may make rules respecting

  • (a) the manner of dealing with grievances referred to the Grievances Committee, including the conduct of investigations and hearings by the Grievances Committee;

  • (b) the apportionment of the work of the Grievances Committee among its members and the assignment of members to review grievances; and

  • (c) the performance of the duties and functions of the Grievances Committee.

• Marginal note:Hearings in private

  (2) A hearing of the Grievances Committee is to be held in private, unless the Chairperson, having regard to the interests of the persons participating in the hearing and the interest of the public, directs that the hearing or any part of it be held in public.

Marginal note:Protection of members

29.27 No criminal or civil proceedings lie against any member of the Grievances Committee, or against any person acting on its behalf, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Grievances Committee.

Marginal note:Annual report

• 29.28 (1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievances Committee during that year and its recommendations, if any.

• Marginal note:Tabling in Parliament

  (2) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

Release

Marginal note:Entitlement

• 30 (1) Except during an emergency, an officer or non-commissioned member who is not on active service is entitled to be released at the expiration of the term of service for which the officer or non-commissioned member is enrolled or re-engaged.

• Marginal note:Effect of illegal absence

  (2) Except as may be prescribed in regulations made by the Governor in Council, any period during which an officer or non-commissioned member is in a state of desertion or is absent without leave shall not be reckoned toward the completion of the term of service for which that officer or non-commissioned member was enrolled or re-engaged.

• Marginal note:Exception in emergency or when on active service

  (3) Where the term of service for which an officer or non-commissioned member is enrolled or re-engaged expires during an emergency or when the officer or non-commissioned member is on active service or within one year after the expiration of an emergency or after he has ceased to be on active service, the officer or non-commissioned member is liable to serve until the expiration of one year after the emergency has ceased to exist or after he has ceased to be on active service, as the case may be.

• Marginal note:Reinstatement

  (4) Subject to regulations made by the Governor in Council, where

  • (a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a court martial or any civil court, and

  • (b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,

  the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.

Active Service

Marginal note:Placing forces on active service

• 31 (1) The Governor in Council may place the Canadian Forces or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do so

  • (a) by reason of an emergency, for the defence of Canada;

  • (b) in consequence of any action undertaken by Canada under the United Nations Charter; or

  • (c) in consequence of any action undertaken by Canada under the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party.

• Marginal note:When officers and non-commissioned members deemed on active service

  (2) An officer or non-commissioned member who

  • (a) is a member of, serving with, or attached or seconded to, a component, unit or other element of the Canadian Forces that has been placed on active service,

  • (b) has been placed on active service, or

  • (c) pursuant to law has been attached or seconded to a portion of a force that has been placed on active service,

  shall be deemed to be on active service for all purposes.

Marginal note:Proclamation for meeting of Parliament

32 Whenever the Governor in Council places the Canadian Forces or any component or unit thereof on active service, if Parliament is then separated by an adjournment or prorogation that will not expire within ten days, a proclamation shall be issued for the meeting of Parliament within ten days, and Parliament shall accordingly meet and sit on the day appointed by the proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.

Service

Marginal note:Liability in case of regular force

• 33 (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.

• Marginal note:Liability in case of reserve force

  (2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof

  • (a) may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and

  • (b) may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.

• Marginal note:Exception in case of reserve force

  (3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

• Marginal note:Meaning of duty

  (4) In this section, duty means any duty that is military in nature and includes any duty involving public service authorized under section 273.6.

Limitation on Deployment

Marginal note:Persons under eighteen

34 A person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.

Pay and Allowances

Marginal note:Treasury Board to establish

• 35 (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.

• Marginal note:Reimbursements and allowances

  (2) The payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service shall be determined and regulated by the Treasury Board.

Supply and Issue of Materiel

Marginal note:Ministerial approval

36 The materiel supplied to or used by the Canadian Forces shall be of such type, pattern and design and shall be issued on such scales and in such manner as the Minister, or such authorities of the Canadian Forces as are designated by the Minister for that purpose, may approve.

Public Property

Marginal note:Liability for loss or damage

37 The conditions under which and the extent to which an officer or non-commissioned member is liable to Her Majesty in respect of loss of or damage to public property shall be as prescribed in regulations.

Non-public Property

Marginal note:Non-public property of units

• 38 (1) The non-public property of a unit or other element of the Canadian Forces shall vest in the officer from time to time in command of that unit or other element, and shall be used for the benefit of officers and non-commissioned members or for any other purpose approved by the Chief of the Defence Staff in the manner and to the extent authorized by the Chief of the Defence Staff.

• Marginal note:Non-public property of disbanded units

  (2) The non-public property of every disbanded unit or other disbanded element of the Canadian Forces vested in the officer in command of that unit or other element shall pass to and vest in the Chief of the Defence Staff, and may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.

• Marginal note:Non-public property of units or elements in altered circumstances

  (3) Where, by reason of a substantial reduction in the number of officers and non-commissioned members serving in a unit or other element of the Canadian Forces or by reason of a change in the location or other conditions of service of a unit or other element, the Chief of the Defence Staff considers it desirable to do so, he may direct that the non-public property or any part thereof that is vested in the officer in command of that unit or other element shall pass to and be vested in the Chief of the Defence Staff on the terms set out in subsection (2).

Marginal note:Other non-public property

• 39 (1) Non-public property acquired by contribution but not contributed to any specific unit or other element of the Canadian Forces shall vest in the Chief of the Defence Staff and, subject to any specific directions by the contributor as to its disposal, may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.

• Marginal note:By-products and refuse

  (2) By-products and refuse derived from rations and other consumable stores issued to the Canadian Forces for use in service kitchens, and the proceeds of the sale thereof, shall, to the extent that the Governor in Council may prescribe, be non-public property.

• Marginal note:Alienation of non-public property

  (3) Except as authorized by the Chief of the Defence Staff, no gift, sale or other alienation or attempted alienation of non-public property is effectual to pass the property therein.

Marginal note:Liability for loss or damage

40 The conditions under which and the extent to which an officer or non-commissioned member is liable to make restitution or reimbursement in respect of loss of or damage to non-public property resulting from the negligence or misconduct of that officer or noncommissioned member shall be as prescribed by the Minister.

Marginal note:Ministerial directions

• 41 (1) The Chief of the Defence Staff shall exercise his authority under subsections 38(1) and (2) and 39(1) subject to any directions that may be given to him by the Minister for carrying the purposes and provisions of this section and sections 38 to 40 into effect.

• Marginal note:Audit

  (2) Non-public property accounts shall be audited as the Minister may from time to time direct.

• Marginal note:Special provision

  (3) The Financial Administration Act does not apply to non-public property.

Service Estates

Marginal note:Collection, administration and distribution

• 42 (1) The service estates of officers and non-commissioned members who die during their service in the Canadian Forces may be collected, administered and distributed in whole or in part as prescribed in regulations made by the Governor in Council.

• Marginal note:Definition of service estate

  (2) For the purposes of this section, but subject to any exceptions prescribed in regulations made by the Governor in Council, service estate means the following parts of the estate of a deceased officer or non-commissioned member mentioned in subsection (1):

  • (a) service pay and allowances;

  • (b) all other emoluments emanating from Her Majesty that, at the date of death, are due or otherwise payable;

  • (c) personal equipment that the deceased person is, under regulations, permitted to retain;

  • (d) personal or movable property, including cash, found on the deceased person or on a defence establishment or otherwise in the care or custody of the Canadian Forces; and

  • (e) in the case of an officer or non-commissioned member dying outside Canada, all other personal or movable property belonging to the deceased and situated outside Canada.

Presumption of Death

Marginal note:Authority to issue certificate

43 Where an officer or non-commissioned member disappears under circumstances that, in the opinion of the Minister or such other authorities as the Minister may designate, raise beyond reasonable doubt a presumption that the officer or non-commissioned member is dead, the Minister or any such other authority may issue a certificate declaring that the officer or non-commissioned member is deemed to be dead and stating the date on which the death is presumed to have occurred, and the officer or non-commissioned member shall thenceforth, for the purposes of this Act and the regulations and in relation to his status and service in the Canadian Forces, be deemed to have died on that date.

Personal Effects of Absentees

Marginal note:Vesting and disposal

44 The personal belongings and decorations of an officer or non-commissioned member who is absent without leave that are found in camp, quarters or otherwise in the care or custody of the Canadian Forces vest in Her Majesty and shall be disposed of in accordance with regulations made by the Governor in Council.

Boards of Inquiry

Marginal note:Convening boards

• 45 (1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.

• Marginal note:Powers

  (2) A board of inquiry has, in relation to the matter before it, power

  • (a) to summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;

  • (b) to administer oaths;

  • (c) to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and

  • (d) to examine any record and make any inquiry that the board considers necessary.

• Marginal note:Access to on-board recordings

  (3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.

Marginal note:Witness not excused from testifying

• 45.1 (1) No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

• Marginal note:Answer not receivable

  (2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

Cadet Organizations

Marginal note:Formation

• 46 (1) The Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of persons of not less than twelve years of age who have not attained the age of nineteen years.

• Marginal note:Training, administration, provision and command

  (2) The cadet organizations referred to in subsection (1) shall be trained for such periods, administered in such manner and provided with materiel and accommodation under such conditions, and shall be subject to the authority and command of such officers, as the Minister may direct.

• Marginal note:Not part of Canadian Forces

  (3) The cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.

Educational Institutions

Marginal note:Establishment

• 47 (1) The Governor in Council, and any other authorities that are prescribed or appointed by the Governor in Council for that purpose, may in the interests of national defence establish institutions for the training and education of officers and non-commissioned members, officers and employees of the Department, candidates for enrolment in the Canadian Forces or for employment in the Department and other persons whose attendance has been authorized by or on behalf of the Minister.

• Marginal note:Control and administration

  (2) The institutions referred to in subsection (1) shall be governed and administered in the manner prescribed by the Minister.

Service Associations

Marginal note:Establishment

• 48 (1) The Governor in Council may establish associations and organizations for purposes designed to further the defence of Canada.

• Marginal note:Accommodation, materiel and facilities

  (2) The Minister may authorize the provision of accommodation, materiel and facilities for the training, practice and use of the associations and organizations mentioned in subsection (1) and other associations and organizations designed to further the defence of Canada, whether or not the members of such associations and organizations are officers or non-commissioned members.

Exercise of Authority

Marginal note:Exercise of authority of officer or non-commissioned member by another

49 Any power or jurisdiction given to, and any act or thing to be done by, to or before any officer or non-commissioned member may be exercised by, or done by, to or before any other officer or non-commissioned member for the time being authorized in that behalf by regulations or according to the custom of the service.

Marginal note:Method of signifying orders

50 Orders made under this Act may be signified by an order, instruction or letter under the hand of any officer whom the authority that made those orders has authorized to issue orders on its behalf, and any order, instruction or letter purporting to be signed by any officer appearing therein to be so authorized is evidence that the officer is so authorized.

Notification of Orders

Marginal note:Publication

• 51 (1) All regulations and all orders and instructions issued to the Canadian Forces shall be held to be sufficiently notified to any person whom they may concern by their publication, in the manner prescribed in regulations made by the Governor in Council, in the unit or other element in which that person is serving.

• Marginal note:Registered mail

  (2) All regulations and all orders and instructions relating to or in any way affecting an officer or non-commissioned member of the reserve force who is not serving with a unit or other element shall, when sent to the officer or non-commissioned member by registered mail, addressed to the latest known place of abode or business of the officer or non-commissioned member, be held to be sufficiently notified.

• Marginal note:Saving provision

  (3) Notwithstanding subsections (1) and (2), all regulations and all orders and instructions referred to in those subsections shall be held to be sufficiently notified to any person whom they may concern by their publication in the Canada Gazette.

Validity of Documents

Marginal note:Authenticity of documents

52 A commission, appointment, warrant, order or instruction in writing purported to be granted, made or issued under this Act is evidence of its authenticity without proof of the signature or seal affixed thereto or the authority of the person granting, making or issuing it.

Marginal note:Signature on commissions

• 53 (1) The Governor General may cause the signature of the Governor General to be affixed to a commission granted to an officer of the Canadian Forces by stamping the signature on the commission with a stamp approved by, and used for the purpose by authority of, the Governor General.

• Marginal note:Validity of signature

  (2) A signature affixed in accordance with subsection (1) is as valid and effectual as if it were in the handwriting of the Governor General, and neither its authenticity nor the authority of the person by whom it was affixed shall be called in question, except on behalf of Her Majesty.

Marginal note:Validity of bonds

54 Every bond to Her Majesty entered into by any person before a judge, a justice of the peace or an officer of the Canadian Forces, including a military judge, for the purpose of securing the payment of a sum of money or the performance of a duty or act required or authorized by this Act or by regulations is valid and may be enforced accordingly.

PART IIICode of Service Discipline

Purpose

Marginal note:Purpose

• 55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.

• Marginal note:Clarification

  (2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.

DIVISION 1Disciplinary Jurisdiction of the Canadian Forces

Application

56 to 59 [Repealed, 1998, c. 35, s. 17]

Marginal note:Persons subject to Code of Service Discipline

• 60 (1) The following persons are subject to the Code of Service Discipline:

  • (a) an officer or non-commissioned member of the regular force;

  • (b) an officer or non-commissioned member of the special force;

  • (c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

    • (i) undergoing drill or training, whether in uniform or not,

    • (ii) in uniform,

    • (iii) on duty,

    • (iv) [Repealed, 1998, c. 35, s. 19]

    • (v) called out under Part VI in aid of the civil power,

    • (vi) called out on service,

    • (vii) placed on active service,

    • (viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,

    • (ix) serving with any unit or other element of the regular force or the special force, or

    • (x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

  • (d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;

  • (e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;

  • (f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;

  • (g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;

  • (h) an alleged spy for the enemy;

  • (i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and

  • (j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

• Marginal note:Continuing liability

  (2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).

• Marginal note:Retention of status and rank

  (3) Every person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1).

Marginal note:Persons accompanying Canadian Forces

• 61 (1) For the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the person

  • (a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations;

  • (b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;

  • (c) is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or

  • (d) is embarked on a vessel or aircraft of that unit or other element.

• Marginal note:How persons accompanying Canadian Forces to be treated

  (2) Subject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.

• Marginal note:Certificate entitling person to treatment as officer

  (3) A person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate.

Marginal note:Command

• 62 (1) Every person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies.

• Marginal note:Spies

  (2) Every person described in paragraph 60(1)(h) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time.

• Marginal note:Released persons serving sentence

  (3) Every person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained.

Marginal note:Persons under special engagement

• 63 (1) Subject to subsection (2), every person mentioned in paragraph 60(1)(j) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.

• Marginal note:Agreement entitling person to treatment as officer

  (2) Where the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.

• Marginal note:Command where person under special engagement

  (3) Every person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving.

64 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 44]

Marginal note:Persons under command of officer deemed their superior officer

• 65 (1) Every person subject to the Code of Service Discipline by virtue of paragraph 60(1)(f), (g), (i) or (j) shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person.

• Marginal note:Prohibited interpretation

  (2) Nothing in subsection (1) shall be construed as requiring any person described therein to bear arms or to participate in any active operations against the enemy.

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

• 66 (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

  • (a) has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or

  • (b) has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.

• Marginal note:Exception

  (2) Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.

• Marginal note:Effect of other offences admitted at previous trial

  (3) A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

67 Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.

Place of Trial

Marginal note:No territorial limitation

68 Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.

Period of Liability

Marginal note:When person is liable

• 69 (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

• Marginal note:Sections 130 and 132

  (2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.

Limitations with respect to Certain Offences

Marginal note:Offences not triable by courts martial

70 A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:

• (a) murder;

• (b) manslaughter; or

• (c) an offence under any of sections 280 to 283 of the Criminal Code.

• (d) to (f) [Repealed, 1998, c. 35, s. 22]

Jurisdiction of Civil Courts

Marginal note:No interference with civil jurisdiction

71 Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.

DIVISION 1.1Declaration of Victims Rights

Interpretation

Marginal note:Definition of military justice system

71.01 For the purposes of this Division, military justice system means

• (a) the investigation of service offences, the processes for the laying and referral of charges of service offences and their prosecution;

• (b) the process for the carrying out of punishments in relation to service offences, except in respect of any service prisoners and service convicts who have been committed to a penitentiary or civil prison; and

• (c) the proceedings of a court martial or a Review Board, as defined in section 197, in respect of an accused person who is found unfit to stand trial or not responsible on account of mental disorder.

Rights

Information

Marginal note:General information

71.02 Every victim has the right, on request, to information about

• (a) the military justice system and the role of victims in it;

• (b) the services and programs available to them as a victim; and

• (c) their right to file a complaint for an infringement or denial of any of their rights under this Division.

Marginal note:Investigation and proceedings

71.03 Every victim has the right, on request, to information about

• (a) the status and outcome of the investigation into the service offence; and

• (b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome.

Marginal note:Information about offender or accused

• 71.04 (1) Every victim has the right, on request, to information about

  • (a) the offender while they are in a service prison or detention barrack;

  • (b) the release of the offender from a service prison or detention barrack;

  • (b.1) hearings held under section 202.161 to decide whether the accused person is a high-risk accused and the dispositions made at those hearings; and

  • (c) hearings held for the purpose of making dispositions under any of sections 201, 202 and 202.16 and the dispositions made at those hearings; and

  • (d) hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.

• Marginal note:Disclosure of information

  (2) Information may be disclosed for the purposes of paragraphs (1)(a) and (b) subject to and in accordance with regulations made by the Governor in Council.

Protection

Marginal note:Security

71.05 Every victim has the right to have their security considered by the appropriate authorities in the military justice system.

Marginal note:Protection from intimidation and retaliation

71.06 Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the military justice system to protect the victim from intimidation and retaliation.

Marginal note:Privacy

71.07 Every victim has the right to have their privacy considered by the appropriate authorities in the military justice system.

Marginal note:Identity protection

71.08 Every victim has the right to request that their identity be protected if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence.

Marginal note:Testimonial aids

71.09 Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the service offence.

Participation

Marginal note:Views to be considered

71.1 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the military justice system that affect the victim’s rights under this Division and to have those views considered.

Marginal note:Victim impact statement

71.11 Every victim has the right to present a victim impact statement to the appropriate authorities in the military justice system and to have it considered.

Restitution

Marginal note:Restitution order

71.12 Every victim has the right to have the court martial consider making a restitution order against the offender.

Marginal note:Enforcement

71.13 Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.

General Provisions

Marginal note:Application

• 71.14 (1) This Division applies in respect of a victim of a service offence in their interactions with the military justice system

  • (a) while the offence is being investigated or prosecuted or the charge is being referred;

  • (b) while the offender is serving a punishment in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a penitentiary or civil prison; and

  • (c) while the accused person is, in relation to the offence, under the jurisdiction of a court martial or a Review Board, as defined in section 197, if they are found unfit to stand trial or not responsible on account of mental disorder.

• Marginal note:Reporting of offence

  (2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the military justice system, the investigation of the offence is deemed to begin at the time of the reporting.

Marginal note:Exercise of rights

• 71.15 (1) The rights of victims under this Division are to be exercised through the mechanisms provided by law.

• Marginal note:Connection to Canada

  (2) A victim is entitled to exercise their rights under this Division only if

  • (a) they are present in Canada; or

  • (b) they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

Marginal note:Victim’s liaison officer

• 71.16 (1) Unless he or she is of the opinion that it is not possible to do so for operational reasons, a commanding officer shall, at the request of the victim, appoint an officer or non-commissioned member, who satisfies the conditions established in regulations made by the Governor in Council, to be a liaison officer to assist the victim as provided for in subsection (3). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim to be their liaison officer.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the victim’s liaison officer, a commanding officer shall appoint another officer or non-commissioned member to replace the liaison officer during that absence or incapacity, unless it is not possible to do so for operational reasons.

• Marginal note:Role of victim’s liaison officer

  (3) Assistance by a victim’s liaison officer consists of

  • (a) explaining to the victim the manner in which service offences are charged, dealt with and tried under the Code of Service Discipline; and

  • (b) obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under this Division.

Marginal note:Interpretation of this Division

71.17 This Division is to be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to

• (a) interfere with the proper administration of military justice, including

  • (i) by causing interference with investigative discretion or by causing excessive delay in, compromising or hindering the investigation of any service offence,

  • (ii) by causing interference with charge laying discretion in respect of any service offence, or by causing excessive delay in, compromising or hindering the laying or referral of a charge in respect of any service offence, and

  • (iii) by causing interference with prosecutorial discretion or by causing excessive delay in, compromising or hindering the prosecution of any service offence;

• (b) interfere with ministerial discretion in respect of any service offence;

• (c) interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community;

• (d) endanger the life or safety of any individual; or

• (e) cause injury to international relations, national defence or national security.

Marginal note:Interpretation of other Acts, regulations, etc.

71.18 To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Division comes into force is to be construed and applied in a manner that is compatible with the rights provided for under this Division.

Marginal note:Primacy in event of inconsistency

• 71.19 (1) If, after the application of sections 71.17 and 71.18, there is any inconsistency between any provision of this Division and any provision of any Act, order, rule or regulation referred to in section 71.18, the provision of this Division prevails to the extent of the inconsistency.

• Marginal note:Exception — Acts, regulations, etc.

  (2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act, the Privacy Act and the Canadian Victims Bill of Rights and in respect of any orders, rules and regulations made under any of those Acts.

Marginal note:No adverse inference

71.2 No adverse inference is to be drawn against a person who is charged with a service offence from the fact that an individual has been identified as a victim in relation to the service offence.

Marginal note:Entering or remaining in Canada

71.21 Nothing in this Division is to be construed so as to permit any individual to

• (a) enter Canada or remain in Canada beyond the end of the period for which they are authorized to so remain;

• (b) delay any removal proceedings or prevent the enforcement of any removal order; or

• (c) delay any extradition proceedings or prevent the extradition of any person to or from Canada.

Remedies

Marginal note:Complaint

• 71.22 (1) Every victim who is of the opinion that any of their rights under this Division have been infringed or denied by an authority within the military justice system has the right to file a complaint in accordance with regulations made by the Governor in Council.

• Marginal note:Complaints mechanism

  (2) Regulations made by the Governor in Council may, among other things, provide for

  • (a) the review of complaints involving alleged infringements or denials of rights under this Division;

  • (b) the power to make recommendations to remedy such infringements and denials; and

  • (c) the obligation to notify victims of the result of those reviews and of any recommendations that were made.

Marginal note:Status

71.23 Nothing in this Division is to be construed as granting to, or removing from, any victim, any individual acting on behalf of a victim or any victim’s liaison officer the status of a party, intervenor or observer in any proceedings.

Marginal note:No cause of action

71.24 No cause of action or right to damages arises from an infringement or denial of a right under this Division. For greater certainty, nothing in this section is to be construed as affecting any other cause of action or right to damages.

Marginal note:No appeal

71.25 No appeal lies from any decision or order solely on the grounds that a right under this Division has been infringed or denied.

DIVISION 2Service Offences and Punishments

Responsibility for Offences

Marginal note:Parties to offences

• 72 (1) Every person is a party to and guilty of an offence who

  • (a) actually commits it;

  • (b) does or omits to do anything for the purpose of aiding any person to commit it;

  • (c) abets any person in committing it; or

  • (d) counsels or procures any person to commit it.

• Marginal note:Attempts

  (2) Every person who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.

• Marginal note:Common intention

  (3) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence.

Civil Defences

Marginal note:Rules and principles of civil courts applicable

72.1 All rules and principles that are followed from time to time in the civil courts and that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

Misconduct of Commanders in Presence of Enemy

Marginal note:Offences by commanders when in action

73 Every officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces who

• (a) when under orders to carry out an operation of war or on coming into contact with an enemy that it is the duty of the officer to engage, does not use his utmost exertion to bring the officers and non-commissioned members under his command or his vessel, aircraft or other materiel into action,

• (b) being in action, does not, during the action, in the officer’s own person and according to the rank of the officer, encourage his officers and non-commissioned members to fight courageously,

• (c) when capable of making a successful defence, surrenders his vessel, aircraft, defence establishment, materiel, unit or other element of the Canadian Forces to the enemy,

• (d) being in action, improperly withdraws from the action,

• (e) improperly fails to pursue an enemy or to consolidate a position gained,

• (f) improperly fails to relieve or assist a known friend to the utmost of his power, or

• (g) when in action, improperly forsakes his station,

is guilty of an offence and on conviction, if the officer acted traitorously, shall be sentenced to imprisonment for life, if the officer acted from cowardice, is liable to imprisonment for life or less punishment, and in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Misconduct of any Person in Presence of Enemy

Marginal note:Offences by any person in presence of enemy

74 Every person who

• (a) improperly delays or discourages any action against the enemy,

• (b) goes over to the enemy,

• (c) when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect,

• (d) improperly abandons or delivers up any defence establishment, garrison, place, materiel, post or guard,

• (e) assists the enemy with materiel,

• (f) improperly casts away or abandons any materiel in the presence of the enemy,

• (g) improperly does or omits to do anything that results in the capture by the enemy of persons or the capture or destruction by the enemy of materiel,

• (h) when on watch in the presence or vicinity of the enemy, leaves his post before he is regularly relieved or sleeps or is drunk,

• (i) behaves before the enemy in such manner as to show cowardice, or

• (j) does or omits to do anything with intent to imperil the success of any of Her Majesty’s Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

Security

Marginal note:Offences related to security

75 Every person who

• (a) improperly holds communication with or gives intelligence to the enemy,

• (b) without authority discloses in any manner whatever any information relating to the numbers, position, materiel, movements, preparations for movements, operations or preparations for operations of any of Her Majesty’s Forces or of any forces cooperating therewith,

• (c) without authority discloses in any manner whatever any information relating to a cryptographic system, aid, process, procedure, publication or document of any of Her Majesty’s Forces or of any forces cooperating therewith,

• (d) makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it,

• (e) gives a parole, watchword, password, countersign or identification signal different from that which he received,

• (f) without authority alters or interferes with any identification or other signal,

• (g) improperly occasions false alarms,

• (h) when acting as sentry or lookout, leaves his post before he is regularly relieved or sleeps or is drunk,

• (i) forces a safeguard or forces or strikes a sentinel, or

• (j) does or omits to do anything with intent to prejudice the security of any of Her Majesty’s Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

Prisoners of War

Marginal note:Offences related to prisoners of war

76 Every person who

• (a) by want of due precaution, or through disobedience of orders or wilful neglect of duty, is made a prisoner of war,

• (b) having been made a prisoner of war, fails to rejoin Her Majesty’s service when able to do so, or

• (c) having been made a prisoner of war, serves with or aids the enemy,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

Miscellaneous Operational Offences

Marginal note:Offences related to operations

77 Every person who

• (a) does violence to any person bringing materiel to any of Her Majesty’s Forces or to any forces cooperating therewith,

• (b) irregularly detains any materiel being conveyed to any unit or other element of Her Majesty’s Forces or of any forces cooperating therewith,

• (c) irregularly appropriates to the unit or other element of the Canadian Forces with which the person is serving any materiel being conveyed to any other unit or element of Her Majesty’s Forces or of any forces cooperating therewith,

• (d) without orders from the person’s superior officer, improperly destroys or damages any property,

• (e) breaks into any house or other place in search of plunder,

• (f) commits any offence against the property or person of any inhabitant or resident of a country in which he is serving,

• (g) steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations,

• (h) steals any money or property that has been left exposed or unprotected in consequence of warlike operations, or

• (i) takes otherwise than for the public service any money or property abandoned by the enemy,

is guilty of an offence and on conviction, if the person committed the offence on active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Spies for the Enemy

Marginal note:Offence of being spy

78 Every person who spies for the enemy is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Mutiny

Marginal note:Mutiny with violence

79 Every person who joins in a mutiny that is accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Marginal note:Mutiny without violence

80 Every person who joins in a mutiny that is not accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding fourteen years or to less punishment or, in the case of a ringleader of the mutiny, to imprisonment for life or to less punishment.

Marginal note:Offences related to mutiny

81 Every person who

• (a) causes or conspires with any other person to cause a mutiny,

• (b) endeavours to persuade any person to join in a mutiny,

• (c) being present, does not use his utmost endeavours to suppress a mutiny, or

• (d) being aware of an actual or intended mutiny, does not without delay inform his superior officer thereof,

is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Seditious Offences

Marginal note:Advocating governmental change by force

82 Every person who publishes or circulates any writing, printing or document in which is advocated, or who teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change within Canada is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Insubordination

Marginal note:Disobedience of lawful command

83 Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Marginal note:Striking or offering violence to a superior officer

84 Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Marginal note:Insubordinate behaviour

85 Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Marginal note:Quarrels and disturbances

86 Every person who

• (a) quarrels or fights with any other person who is subject to the Code of Service Discipline, or

• (b) uses provoking speeches or gestures toward a person so subject that tend to cause a quarrel or disturbance,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Resisting or escaping from arrest or custody

87 Every person who

• (a) being concerned in a quarrel, fray or disorder,

  • (i) refuses to obey an officer, though of inferior rank, who orders the person into arrest, or

  • (ii) strikes or uses or offers violence to any such officer,

• (b) strikes or uses or offers violence to any other person in whose custody he is placed, whether or not that other person is his superior officer and whether or not that other person is subject to the Code of Service Discipline,

• (c) resists an escort whose duty it is to apprehend him or to have him in charge, or

• (d) breaks out of barracks, station, camp, quarters or ship,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Desertion

Marginal note:Offence

• 88 (1) Every person who deserts or attempts to desert is guilty of an offence and on conviction, if the person committed the offence on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

• Marginal note:Definition

  (2) A person deserts who

  • (a) being on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service;

  • (b) having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;

  • (c) absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;

  • (d) is absent without authority from his place of duty and at any time during such absence forms the intention of remaining absent from his place of duty; or

  • (e) while absent with authority from his place of duty, with the intention of remaining absent from his place of duty, does any act or omits to do anything the natural and probable consequence of which act or omission is to preclude the person from being at his place of duty at the time required.

• Marginal note:Presumption of desertion

  (3) A person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of remaining absent from his place of duty.

Marginal note:Connivance at desertion

89 Every person who

• (a) being aware of the desertion or intended desertion of a person from any of Her Majesty’s Forces, does not without reasonable excuse inform his superior officer forthwith, or

• (b) fails to take any steps in his power to cause the apprehension of a person whom he knows, or has reasonable grounds to believe, to be a deserter,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Absence without Leave

Marginal note:Offence

• 90 (1) Every person who absents himself without leave is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

• Marginal note:Definition

  (2) A person absents himself without leave who

  • (a) without authority leaves his place of duty;

  • (b) without authority is absent from his place of duty; or

  • (c) having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized.

Marginal note:False statement in respect of leave

91 Every person who knowingly makes a false statement in respect of prolongation of leave of absence is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Disgraceful Conduct

Marginal note:Scandalous conduct by officers

92 Every officer who behaves in a scandalous manner unbecoming an officer is guilty of an offence and on conviction shall suffer dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service.

Marginal note:Cruel or disgraceful conduct

93 Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

Marginal note:Traitorous or disloyal utterances

94 Every person who uses traitorous or disloyal words regarding Her Majesty is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

Marginal note:Abuse of subordinates

95 Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Making false accusations or statements or suppressing facts

96 Every person who

• (a) makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, or

• (b) when seeking redress under section 29, knowingly makes a false statement affecting the character of an officer or non-commissioned member or knowingly, in respect of the redress so sought, suppresses any material fact

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Drunkenness

• 97 (1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.

• Marginal note:When committed

  (2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,

  • (a) is unfit to be entrusted with any duty that the person is or may be required to perform; or

  • (b) behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.

Marginal note:Malingering, aggravating disease or infirmity or injuring self or another

98 Every person who

• (a) malingers or feigns or produces disease or infirmity,

• (b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

• (c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,

is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

Offences in relation to Service Arrest and Custody

Marginal note:Detaining unnecessarily or failing to bring up for investigation

99 Every person who unnecessarily detains any other person in arrest or confinement without bringing him to trial, or fails to bring that other person’s case before the proper authority for investigation, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Setting free without authority or allowing or assisting escape

100 Every person who

• (a) without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody,

• (b) negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody, or

• (c) assists any person in escaping or in attempting to escape from custody,

is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for a term not exceeding seven years or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

Marginal note:Escape from custody

101 Every person who, being in arrest or confinement or in prison or otherwise in lawful custody, escapes or attempts to escape is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Failure to comply with conditions

101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Hindering arrest or confinement or withholding assistance when called on

102 Every person who

• (a) resists or wilfully obstructs an officer or non-commissioned member in the performance of any duty pertaining to the arrest, custody or confinement of a person subject to the Code of Service Discipline, or

• (b) when called on, refuses or neglects to assist an officer or non-commissioned member in the performance of any such duty

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Withholding delivery over or assistance to civil power

103 Every person who neglects or refuses to deliver over an officer or non-commissioned member to the civil power, pursuant to a warrant in that behalf, or to assist in the lawful apprehension of an officer or non-commissioned member accused of an offence punishable by a civil court is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Offences in relation to Vessels

Marginal note:Losing, stranding or hazarding vessels

104 Every person who wilfully or negligently or through other default loses, strands or hazards, or suffers to be lost, stranded or hazarded, any of Her Majesty’s Canadian ships or other vessels of the Canadian Forces is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

105 [Repealed, 1998, c. 35, s. 30]

Marginal note:Disobedience of captain’s orders

• 106 (1) Every person who, when in a ship, disobeys any lawful command given by the captain of the ship in relation to the navigation or handling of the ship or affecting the safety of the ship, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

• Marginal note:Command in ship

  (2) For the purposes of this section, every person of whatever rank shall, when the person is in a ship, be under the command, in respect of all matters relating to the navigation or handling of the ship or affecting the safety of the ship, of the captain of the ship, whether or not the captain is subject to the Code of Service Discipline.

Offences in relation to Aircraft

Marginal note:Wrongful acts in relation to aircraft or aircraft material

107 Every person who

• (a) in the use of or in relation to any aircraft or aircraft material, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause loss of life or bodily injury to any person,

• (b) wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission results or is likely to result in damage to or destruction or loss of any of Her Majesty’s aircraft or aircraft material or of aircraft or aircraft material of any forces cooperating with Her Majesty’s Forces, or

• (c) during a state of war wilfully or negligently causes the sequestration by or under the authority of a neutral state or the destruction in a neutral state of any of Her Majesty’s aircraft or of aircraft of any forces cooperating with Her Majesty’s Forces,

is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

Marginal note:Signing inaccurate certificate

108 Every person who signs an inaccurate certificate in relation to an aircraft or aircraft material without taking reasonable steps to ensure that it was accurate, the proof of taking which steps lies on that person, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Low flying

109 Every person who flies an aircraft at a height less than the minimum height authorized in the circumstances is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Disobedience of captain’s orders

• 110 (1) Every person who, when in an aircraft, disobeys any lawful command given by the captain of the aircraft in relation to the flying or handling of the aircraft or affecting the safety of the aircraft, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

• Marginal note:Command in aircraft

  (2) For the purposes of this section,

  • (a) every person of whatever rank shall, when the person is in an aircraft, be under the command, in respect of all matters relating to the flying or handling of the aircraft or affecting the safety of the aircraft, of the captain of the aircraft, whether or not the captain is subject to the Code of Service Discipline; and

  • (b) if the aircraft is a glider and is being towed by another aircraft, the captain of the glider shall, so long as the glider is being towed, be under the command, in respect of all matters relating to the flying or handling of the glider or affecting the safety of the glider, of the captain of the towing aircraft, whether or not the captain of the towing aircraft is subject to the Code of Service Discipline.

Offences in relation to Vehicles

Marginal note:Improper driving of vehicles

• 111 (1) Every person who

  • (a) drives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or, having charge of and being in or on such a vehicle, causes or by wilful neglect permits it to be so driven,

  • (b) while the person’s ability to drive a vehicle of the Canadian Forces is impaired by alcohol or a drug, drives or attempts to drive such a vehicle, whether it is in motion or not, or

  • (c) having charge of a vehicle of the Canadian Forces, knowingly permits it to be driven by a person whose ability to drive such a vehicle is impaired by alcohol or a drug,

  is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

• Marginal note:Occupant of driver’s seat deemed attempting to drive

  (2) For the purposes of paragraph (1)(b), a person who occupies the seat ordinarily occupied by a driver of a vehicle shall be deemed to have attempted to drive the vehicle, unless that person establishes that he did not enter or mount the vehicle for the purpose of setting it in motion.

Marginal note:Improper use of vehicles

112 Every person who

• (a) uses a vehicle of the Canadian Forces for an unauthorized purpose,

• (b) without authority uses a vehicle of the Canadian Forces for any purpose, or

• (c) uses a vehicle of the Canadian Forces contrary to any regulation, order or instruction,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Offences in relation to Property

Marginal note:Causing fires

113 Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

Marginal note:Stealing

• 114 (1) Every person who steals is guilty of an offence and on conviction, if by reason of the person’s rank, appointment or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding seven years or to less punishment.

• Marginal note:Definition

  (2) For the purposes of this section,

  • (a) stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, any thing capable of being stolen, with intent

    • (i) to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of that property or interest,

    • (ii) to pledge it or deposit it as security,

    • (iii) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or

    • (iv) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time when it was taken and converted;

  • (b) stealing is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it;

  • (c) the taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment; and

  • (d) it is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person who converts it.

• Marginal note:When movable inanimate things capable of being stolen

  (3) Every inanimate thing that is the property of any person and that either is or may be made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order that it may be stolen.

Marginal note:Receiving

115 Every person who receives or retains in his possession any property obtained by the commission of any service offence, knowing the property to have been so obtained, is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

Marginal note:Destruction, damage, loss or improper disposal

116 Every person who

• (a) wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any public property, non-public property or property of any of Her Majesty’s Forces or of any forces cooperating therewith,

• (b) wilfully destroys, damages or improperly sells any property belonging to another person who is subject to the Code of Service Discipline, or

• (c) sells, pawns or otherwise disposes of any cross, medal, insignia or other decoration granted by or with the approval of Her Majesty,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Miscellaneous offences

117 Every person who

• (a) connives at the exaction of an exorbitant price for property purchased or rented by a person supplying property or services to the Canadian Forces,

• (b) improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department or the Canadian Forces,

• (c) receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration, either in money or otherwise, from any person, for assisting or favouring any person in the transaction of any business relating to any of Her Majesty’s Forces, or to any forces cooperating therewith or to any mess, institute or canteen operated for the use and benefit of members of those forces,

• (d) demands or accepts compensation, consideration or personal advantage for convoying a vessel entrusted to his care,

• (e) being in command of a vessel or aircraft, takes or receives on board goods or merchandise that he is not authorized to take or receive on board, or

• (f) commits any act of a fraudulent nature not particularly specified in sections 73 to 128,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Offences in relation to Tribunals

Marginal note:Definition of tribunal

• 118 (1) For the purposes of this section and section 119, tribunal includes a court martial, a military judge, an officer conducting a summary hearing, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.

• Marginal note:Contempt

  (2) Every person who

  • (a) being duly summoned or ordered to attend as a witness before a tribunal, fails to attend or to remain in attendance,

  • (b) refuses to take an oath or make a solemn affirmation lawfully required by a tribunal to be taken or made,

  • (c) refuses to produce any document in the power or control of, and lawfully required by a tribunal to be produced by, that person,

  • (d) refuses when a witness to answer any question to which a tribunal may lawfully require an answer,

  • (e) uses insulting or threatening language before, or causes any interruption or disturbance in the proceedings of, a tribunal, or

  • (f) commits any other contempt of a tribunal

  is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Failure to appear or attend

118.1 Every person who, being duly summoned or ordered to appear before a court martial or a military judge, as an accused, or before an officer conducting a summary hearing, as a person charged with having committed a service infraction, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:False evidence

119 Every person who, when examined on oath or solemn affirmation before a tribunal, knowingly gives false evidence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

Offence in Relation to the Sex Offender Information Registration Act

Marginal note:Failure to comply with order or obligation

• 119.1 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

• Marginal note:Reasonable excuse

  (2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.

• Marginal note:Proof of certain facts by certificate

  (3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:Attendance and cross-examination

  (4) The person named in the certificate may, with the leave of the court martial, require the attendance of the person who signed it for the purpose of cross-examination.

• Marginal note:Notice of intention to produce

  (5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the person named in the certificate a copy of it and reasonable notice of their intention to produce it.

Offence in Relation to DNA Identification

Marginal note:Failure to comply with order or summons

• 119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

• Marginal note:For greater certainty

  (2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.

Offences in relation to Billeting

Marginal note:Ill-treatment or non-payment of occupant or person on whom billeted

120 Every person who

• (a) ill-treats, by violence, extortion or making disturbance in billets or otherwise, any occupant of a house in which any person is billeted or of any premises in which accommodation for materiel has been provided, or

• (b) fails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or non-commissioned member under his command is or has been billeted or the occupant of premises on which materiel is or has been accommodated,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Offences in relation to Enrolment

Marginal note:Fraudulent enrolment

121 Every person who, having been released from Her Majesty’s Forces by reason of a sentence of a court martial or by reason of misconduct, has afterwards been enrolled in the Canadian Forces without declaring the circumstances of that release is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:False answers or false information

122 Every person who knowingly

• (a) makes a false answer to any question set out in any document required to be completed, or

• (b) furnishes any false information or false document,

in relation to the enrolment of that person is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Assisting unlawful enrolment

123 Every person who is concerned in the enrolment of any other person and who knows or has reasonable grounds to believe that by being enrolled that other person commits an offence under this Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Miscellaneous Offences

Marginal note:Negligent performance of duties

124 Every person who negligently performs a military duty imposed on that person is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Marginal note:Offences in relation to documents

125 Every person who

• (a) wilfully or negligently makes a false statement or entry in a document made or signed by that person and required for official purposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof,

• (b) when signing a document required for official purposes, leaves in blank any material part for which the signature is a voucher, or

• (c) with intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any military or departmental purpose,

is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding three years or to less punishment.

Marginal note:Refusing immunization, tests, blood examination or treatment

126 Every person who, on receiving an order to submit to inoculation, re-inoculation, vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, wilfully and without reasonable excuse disobeys that order is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Injurious or destructive handling of dangerous substances

127 Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions does any act or omits to do anything, in relation to any thing or substance that may be dangerous to life or property, which act or omission causes or is likely to cause loss of life or bodily injury to any person or damage to or destruction of any property, is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

Marginal note:Conspiracy

128 Every person who conspires with any other person, whether or not that other person is subject to the Code of Service Discipline, to commit an offence under the Code of Service Discipline is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

Conduct to the Prejudice of Good Order and Discipline

Marginal note:Prejudicing good order or discipline

• 129 (1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

• Marginal note:Offence and contraventions prejudicial to good order and discipline

  (2) An act or omission constituting an offence under section 72 or a contravention by any person of

  • (a) any of the provisions of this Act,

  • (b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or

  • (c) any general, garrison, unit, station, standing, local or other orders,

  is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

• Marginal note:Attempts to commit offences

  (3) An attempt to commit any of the offences prescribed in sections 73 to 128 is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

• Marginal note:Saving provision

  (4) Nothing in subsection (2) or (3) affects the generality of subsection (1).

• Marginal note:Not intended to cover offences elsewhere provided for

  (5) No person may be charged under this section with any offence for which special provision is made in sections 73 to 128 but the conviction of a person so charged is not invalid by reason only of the charge being in contravention of this subsection unless it appears that an injustice has been done to the person charged by reason of the contravention.

• Marginal note:Officer’s responsibility not affected

  (6) The responsibility of any officer for the contravention of subsection (5) is not affected by the validity of any conviction on the charge in contravention of that subsection.

Offences Punishable by Ordinary Law

Marginal note:Service trial of civil offences

• 130 (1) An act or omission

  • (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or

  • (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,

  is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

• Marginal note:Punishment

  (2) Subject to subsection (3), if a court martial convicts a person under subsection (1), it shall,

  • (a) if the conviction was in respect of an offence

    • (i) committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or

    • (ii) committed outside Canada under section 235 of the Criminal Code,

    impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or

  • (b) in any other case,

    • (i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or

    • (ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.

• Marginal note:Code of Service Discipline applies

  (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).

• Marginal note:Saving provision

  (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.

Marginal note:Reference to Attorney General

131 For the purposes of this Act, the reference in section 320.4 of the Criminal Code to the Attorney General includes the Attorney General of Canada.

Marginal note:Offences under law applicable outside Canada

• 132 (1) An act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Division, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).

• Marginal note:Punishment for offence under law applicable outside Canada

  (2) Subject to subsection (3), where a court martial finds a person guilty of an offence under subsection (1), the court martial shall impose the punishment in the scale of punishments that it considers appropriate, having regard to the punishment prescribed by the law applicable in the place where the act or omission occurred and the punishment prescribed for the same or a similar offence in this Act, the Criminal Code or any other Act of Parliament.

• Marginal note:Application of Code of Service Discipline

  (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under subsection (2).

• Marginal note:Saving provision

  (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 130 and to impose the punishment for that offence described in the section prescribing that offence.

• Marginal note:Contravention of customs laws

  (5) Where an act or omission constituting an offence under subsection (1) contravenes the customs laws applicable in the place where the offence was committed, any officer appointed under the regulations for the purposes of this section may seize and detain any goods by means of or in relation to which the officer believes on reasonable grounds that the offence was committed and, if any person is convicted of the offence under subsection (1), the goods may, in accordance with regulations made by the Governor in Council, be forfeited to Her Majesty and may be disposed of as provided by those regulations.

Conviction of Cognate Offence

Marginal note:Person charged with desertion

• 133 (1) A person charged with desertion may be found guilty of attempting to desert or of being absent without leave.

• Marginal note:Person charged with attempt to desert

  (2) A person charged with attempting to desert may be found guilty of being absent without leave.

Marginal note:Person charged with violent offence against officer

• 134 (1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

• Marginal note:Person charged with insubordinate behaviour

  (2) A person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.

Marginal note:Conviction of offence in circumstances involving lower punishment

135 A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

Marginal note:Powers on service trial of civil offences

136 Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.

Marginal note:Offence charged, attempt proved

• 137 (1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.

• (2) [Repealed, 2019, c. 15, s. 11]

• (3) [Repealed, 2019, c. 15, s. 11]

Marginal note:Special finding of guilty

138 A court martial may, instead of making a finding of not guilty, make a special finding of guilty if it concludes that

• (a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged; and

• (b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in their defence.

If the court martial makes a special finding of guilty, it shall state the differences between the facts proved and the facts alleged in the statement of particulars.

Punishments

Marginal note:Scale of punishments

• 139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

  • (a) imprisonment for life;

  • (b) imprisonment for two years or more;

  • (c) dismissal with disgrace from Her Majesty’s service;

  • (d) imprisonment for less than two years;

  • (e) dismissal from Her Majesty’s service;

  • (f) detention;

  • (g) reduction in rank;

  • (h) forfeiture of seniority;

  • (i) severe reprimand;

  • (j) reprimand;

  • (k) fine; and

  • (l) minor punishments.

• Marginal note:Definition of less punishment

  (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.

Marginal note:Imprisonment for shorter term

140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.

Marginal note:Dismissal as accompanying punishment

• 140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.

• Marginal note:Dismissal as accompanying punishment

  (2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.

Marginal note:Reduction in rank as accompanying punishment

140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be

• (a) in the case of an officer, to the lowest commissioned rank; and

• (b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.

140.3 [Repealed, 2013, c. 24, s. 19]

140.4 [Repealed, 2013, c. 24, s. 19]

Marginal note:Dismissal with disgrace

• 141 (1) If a court martial imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, it may, in addition, despite any other provision of this Division, impose a punishment of imprisonment for less than two years.

• Marginal note:Effective date of dismissal

  (1.1) A punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.

• Marginal note:Consequences

  (2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.

Marginal note:Detention

• 142 (1) The punishment of detention is subject to the following conditions:

  • (a) detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; and

  • (b) no officer may be sentenced to detention.

• Marginal note:Reduction in rank during detention

  (2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.

Marginal note:Reduction in rank

• 143 (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.

• Marginal note:Restrictions

  (2) The punishment of reduction in rank does not

  • (a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and

  • (b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.

Marginal note:Forfeiture of seniority

144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.

Marginal note:Fine

• 145 (1) A fine must be imposed in a stated amount.

• Marginal note:Terms of payment

  (2) The terms of payment of a fine are in the discretion of the court martial that imposes the fine.

• Marginal note:Variation of terms of payment

  (3) The terms of payment of a fine may be varied by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.

Marginal note:Civil enforcement of fines

• 145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.

• Marginal note:Effect of filing order

  (2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.

Marginal note:Minor punishments

146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.

147 [Repealed, 2019, c. 15, s. 15]

Prohibition Orders

Marginal note:Prohibition order

• 147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of

  • (a) an offence in the commission of which violence against a person was used, threatened or attempted;

  • (b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance;

  • (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act;

  • (c.1) an offence relating to the contravention of any of sections 9 to 14 of the Cannabis Act; or

  • (d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.

• Marginal note:Duration of prohibition order

  (2) An order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.

• Marginal note:Application of order

  (3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the performance of their duties.

• Marginal note:Notification

  (4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the Firearms Act to be notified of the order.

Marginal note:Requirement to surrender

147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer

• (a) any thing the possession of which is prohibited by the order that is in the possession of the offender on the commencement of the order; and

• (b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the offender on the commencement of the order.

The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.

Marginal note:Forfeiture

• 147.3 (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.

• Marginal note:Disposal

  (2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.

Marginal note:Authorizations revoked or amended

147.4 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

Marginal note:Return to owner

147.5 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,

• (a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and

• (b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,

the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

Order to Abstain from Communicating

Marginal note:If injury or damage feared

• 147.6 (1) An information may, in accordance with regulations made by the Governor in Council, be laid before a military judge by or on behalf of any victim who fears on reasonable grounds that a person who is subject to the Code of Service Discipline will cause physical or emotional harm to the victim, to the victim’s spouse, to a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year, or to the victim’s child or will cause damage to the victim’s property.

• Marginal note:Parties to appear

  (2) The military judge who receives the information shall cause the parties to appear before the military judge, either in person or otherwise.

• Marginal note:Order

  (3) The military judge may, if satisfied by the evidence that there are reasonable grounds for the victim’s fears, order that the person who is subject to the Code of Service Discipline and who is referred to in the information

  • (a) abstain from communicating, directly or indirectly, with any of the following individuals who are specified in the order:

    • (i) the victim,

    • (ii) the victim’s spouse,

    • (iii) a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year,

    • (iv) the victim’s child;

  • (b) refrain from going to any place specified in the order; or

  • (c) comply with any other condition specified in the order that the military judge considers necessary.

• Marginal note:Absence of military judge

  (4) If, for operational reasons, no military judge is available, the information may be laid before a commanding officer and, if it is so laid, that commanding officer has all the powers of a military judge that are set out in subsection (3).

• Marginal note:Review

  (5) Every decision of a commanding officer to make or not make an order under subsection (3) must be reviewed as soon as feasible by a military judge. The military judge may, at the conclusion of the review, amend any order that was made and, if none was made, make any order under that subsection.

Intermittent Sentences

Marginal note:Imprisonment or detention

• 148 (1) A court martial that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

  • (a) that the sentence be served intermittently at the times specified in the order; and

  • (b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.

• Marginal note:Application to vary intermittent sentence

  (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying to a military judge after giving notice to the Director of Military Prosecutions.

• Marginal note:New sentence of imprisonment or detention

  (3) If a court martial imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence is to be served on consecutive days unless the court martial orders otherwise.

• Marginal note:Hearing into breach of conditions

  (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by a military judge.

• Marginal note:Consequences of breach

  (5) If a military judge determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the military judge may

  • (a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

  • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as the military judge sees fit.

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

149 Where a person is under a sentence imposed by a court martial that includes a punishment involving incarceration and another court martial subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.

149.1 [Repealed before coming into force, 2005, c. 22, s. 47]

Punishment for Certain Offences

Marginal note:Punishment for certain offences

• 149.2 (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

• Marginal note:Offender must be notified

  (2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.

150 [Repealed, 2013, c. 24, s. 25]

151 [Repealed, 2013, c. 24, s. 25]

152 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]

DIVISION 3Arrest and Pre-Trial Custody

Interpretation

Marginal note:Definitions

153 The definitions in this section apply in this Division.

custody review officer

custody review officer, in respect of a person in custody, means

• (a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

• (b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer. (officier réviseur)

designated offence

designated offence means

• (a) an offence that is punishable under section 130 that is

  • (i) listed in section 469 of the Criminal Code,

  • (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

  • (iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

• (b) an offence under this Act where the minimum punishment is imprisonment for life;

• (c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

• (d) an offence under this Act that is a criminal organization offence; or

• (e) an offence under this Act that is a terrorism offence. (infraction désignée)

Authority to Arrest

Marginal note:General authority

• 154 (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

• Marginal note:Reasonably necessary force

  (2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

Marginal note:Powers of officers

• 155 (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  • (a) any non-commissioned member;

  • (b) any officer of equal or lower rank; and

  • (c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

• Marginal note:Powers of non-commissioned members

  (2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  • (a) any non-commissioned member of lower rank; and

  • (b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

• Marginal note:Limitations on power of arrest

  (2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:

  • (a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to

    • (i) establish the person’s identity,

    • (ii) secure or preserve evidence of or relating to the offence, and

    • (iii) prevent the continuation or repetition of the offence or the commission of another offence; and

  • (b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a court martial in order to be dealt with according to law.

• Marginal note:Arrest of persons other than officers or non-commissioned members

  (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.

Marginal note:Powers of military police

• 156 (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may

  • (a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

  • (b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

• Marginal note:Arrest without warrant — limitations

  (2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.

Marginal note:Issue of warrants

• 157 (1) Subject to subsection (2), every commanding officer, and every officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing, may by a warrant under his or her hand authorize any person to arrest any person subject to the Code of Service Discipline who

  • (a) has committed a service offence;

  • (b) is believed on reasonable grounds to have committed a service offence; or

  • (c) is charged under this Act with having committed a service offence.

• Marginal note:Limitation

  (2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

• Marginal note:Limitation

  (2.1) An officer authorized to issue a warrant under this section shall not issue a warrant for the arrest of any person who is a member of, serving with, or attached or seconded to the same unit of the Canadian Forces as the officer.

• Marginal note:Contents of warrants

  (3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

• Marginal note:Saving provision

  (4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.

Action following Arrest

Marginal note:Release from custody

• 158 (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

  • (a) the gravity of the offence alleged to have been committed;

  • (b) the need to establish the identity of the person under arrest;

  • (c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

  • (d) the need to ensure that the person under arrest will appear before a court martial or civil court to be dealt with according to law;

  • (e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

  • (f) the necessity to ensure the safety and security of the person under arrest, any victim of the offence, or any other person.

• Marginal note:Retention in custody

  (2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

• Marginal note:Duty to receive into service custody

  (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

• Marginal note:Account in writing

  (4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

Marginal note:Report of custody

• 158.1 (1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

• Marginal note:Contents

  (2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

• Marginal note:Representations concerning release

  (3) Before the report of custody is delivered to the custody review officer,

  • (a) a copy of the report and the account in writing must be provided to the person in custody; and

  • (b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

• Marginal note:Representations to be reduced to writing

  (4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

• Marginal note:Accompanying documents

  (5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.

Initial Review

Marginal note:Review of report of custody

• 158.2 (1) The custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.

• Marginal note:Duty to release

  (2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1).

Marginal note:Continuing duty to release

158.3 If, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody.

Marginal note:Duty to retain in custody if designated offence

158.4 Notwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody.

Marginal note:Duty to review where charge not laid

158.5 If a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody.

Marginal note:Release with or without conditions

• 158.6 (1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

  • (a) remain under military authority;

  • (b) report at specified times to a specified military authority;

  • (c) remain within the confines of a specified defence establishment or at a location within a geographical area;

  • (d) abstain from communicating with any witness or specified person, or refrain from going to any specified place; and

  • (e) comply with such other reasonable conditions as are specified.

• Marginal note:Consideration of victim’s safety and security

  (1.1) If the custody review officer directs that the person be released, with or without conditions, the custody review officer shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.

• Marginal note:Copy to victim

  (1.2) The custody review officer shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

• Marginal note:Review

  (2) A direction to release a person with or without conditions may, on application, be reviewed by

  • (a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

  • (b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

• Marginal note:Powers

  (3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction that a custody review officer may make under subsection (1). If he or she makes a direction, subsections (1.1) and (1.2) apply with any necessary modifications.

Marginal note:Direction — no communication

158.61 If a custody review officer directs that a person be retained in custody, the custody review officer may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction except in accordance with any conditions specified in the direction that the officer considers necessary.

Review by Military Judge

Marginal note:Review of directions

• 158.7 (1) A military judge may, on application by counsel for the Canadian Forces or by a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):

  • (a) a direction that was reviewed under subsection 158.6(2);

  • (b) a direction that was made under subsection 158.6(3); and

  • (c) a direction that was made under this section.

• Marginal note:Conditions

  (2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.

• Marginal note:Further applications

  (3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.

Marginal note:Hearing by military judge

• 159 (1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

• Marginal note:Applicable operational considerations

  (2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed.

Marginal note:Onus on Canadian Forces

159.1 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.

Marginal note:Justification for retention in custody

159.2 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

• (a) custody is necessary to ensure the person’s attendance before a court martial or civil court to be dealt with according to law;

• (b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of military justice; and

• (c) custody is necessary to maintain public trust in the administration of military justice, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

Marginal note:Onus on person in custody

• 159.3 (1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.

• Marginal note:Release on undertaking

  (2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.

Marginal note:Direction — no communication

159.31 If a military judge directs that a person be retained in custody, the military judge may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the military judge considers necessary.

Marginal note:Release with or without undertaking

• 159.4 (1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.

• Marginal note:Variation of undertaking

  (2) The undertaking under which a person is released may be varied

  • (a) by direction of a military judge on application with reasonable notice being given; or

  • (b) with the written consent of the person and the Director of Military Prosecutions.

Marginal note:Hearing may be adjourned

159.5 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

Marginal note:Alternate means of hearing

• 159.6 (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

• Marginal note:Representations and factors to be considered

  (2) In deciding whether to make the direction, the military judge shall take into account

  • (a) the location of the person in custody;

  • (b) the gravity of the offence;

  • (c) the circumstances under which the unit or element detaining the person in custody is deployed;

  • (d) the availability of counsel for the Canadian Forces and the person in custody;

  • (e) the limitations of available telecommunications devices;

  • (f) the time required to bring the person in custody and the person’s counsel before the military judge; and

  • (g) any other matter that the military judge considers relevant.

Marginal note:Reasons

• 159.7 (1) The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

• Marginal note:Consideration of victim’s safety and security

  (2) If the military judge directs that a person be released, with or without conditions, the military judge shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.

• Marginal note:Copy to victim

  (3) The military judge shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

Duty of Director of Military Prosecutions

Marginal note:Review after 90 days

159.8 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.

Review by Court Martial Appeal Court

Marginal note:Review of direction

• 159.9 (1) At any time before the commencement of a person’s trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.

• Marginal note:Application of provisions

  (2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.

Direction Cancelled

Marginal note:Regulations

159.91 A direction to retain a person in custody or impose conditions on their release is cancelled in the circumstances prescribed in regulations made by the Governor in Council.

DIVISION 4Commencement of Proceedings

Interpretation

Marginal note:Definition of commanding officer

160 In this Division, commanding officer, in respect of a person charged with having committed a service offence or a service infraction, means the commanding officer of the person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the person.

Laying of Charge

Marginal note:Laying of charge

• 161 (1) Proceedings against a person who is alleged to have committed a service offence or a service infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

• Marginal note:Duty to act expeditiously

  (2) If the person is retained in custody or released from custody with conditions, a charge must be laid as expeditiously as the circumstances permit.

Marginal note:Referral of charge — service offence

• 161.1 (1) After a person is charged with having committed a service offence, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.

• Marginal note:Referral of charge — service infraction

  (2) After a person is charged with having committed a service infraction, the charge must be referred, in accordance with regulations made by the Governor in Council, to an officer who is a commanding officer in respect of the person.

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

162 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

162.1 [Repealed, 2019, c. 15, s. 25]

162.2 [Repealed, 2019, c. 15, s. 25]

DIVISION 5Summary Hearings

Interpretation

Marginal note:Definitions

162.3 The following definitions apply in this Division.

commanding officer

commanding officer, in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. (commandant)

delegated officer

delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. (officier délégué)

scale of sanctions

scale of sanctions means the scale of sanctions set out in subsection 162.7. (échelle des sanctions)

superior commander

superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)

Service Infractions

Marginal note:Summary hearing

162.4 Service infractions may be dealt with only by summary hearing.

Marginal note:Not offence

162.5 A service infraction is not an offence under this Act.

Marginal note:Prior trial — offence

• 162.6 (1) If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state.

• Marginal note:Prior summary hearing — service infraction

  (2) If a summary hearing has been conducted in respect of a service infraction that a person is alleged to have committed, the person may be charged, dealt with and tried in respect of an offence arising from the same facts, regardless of whether or not the person was found to have committed the service infraction.

• Marginal note:Answer or statement — restriction

  (3) No answer given or statement made by a person at their summary hearing may be used or be receivable against them in any disciplinary, criminal or civil proceeding, other than at a hearing or proceeding in respect of an allegation that they gave the answer or made the statement knowing it to be false.

Marginal note:Scale of sanctions

162.7 The following sanctions may be imposed in respect of a service infraction, and each is a sanction less than every sanction preceding it:

• (a) reduction in rank;

• (b) severe reprimand;

• (c) reprimand;

• (d) deprivation of pay, and of any allowance prescribed in regulations made by the Governor in Council, for not more than 18 days; and

• (e) minor sanctions prescribed in regulations made by the Governor in Council.

Marginal note:Reduction in rank

• 162.8 (1) The sanction of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.

• Marginal note:Restrictions

  (2) The sanction of reduction in rank is not to involve

  • (a) reduction to a rank lower than that to which the person who has committed a service infraction can be reduced under regulations; and

  • (b) in the case of a commissioned officer, reduction to a rank lower than commissioned rank.

Marginal note:Objectives of sanctions

162.9 The imposition of sanctions is intended to achieve 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 indisciplined conduct;

• (d) to deter persons from committing service infractions;

• (e) to assist in rehabilitating persons who have committed service infractions;

• (f) to promote a sense of responsibility in persons who have committed service infractions.

Marginal note:Fundamental principle

162.91 Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it.

Marginal note:Other principles

162.92 Sanctions must be imposed in accordance with the following other principles:

• (a) a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that

  • (i) the person, in committing the service infraction, abused their rank or other position of trust or authority,

  • (ii) the service infraction 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, or

  • (iii) the commission of the service infraction resulted in harm to the conduct of a military operation or any military training;

• (b) a sanction should be similar to sanctions imposed on persons for similar service infractions committed in similar circumstances; and

• (c) a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces.

Marginal note:Consideration of indirect consequences

162.93 In determining the sanction to be imposed against a person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the finding that the person committed a service infraction, or of the sanction.

Summary Hearings

Marginal note:Delegation

162.94 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command.

Marginal note:Commanding officer’s obligation

162.95 A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer.

Marginal note:Jurisdiction

• 163 (1) A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied:

  • (a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;

  • (b) having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate;

  • (c) there are no reasonable grounds to believe that the person charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings; and

  • (d) having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing.

• Marginal note:Prohibition on conducting hearing

  (2) A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she

  • (a) carried out or directly supervised the investigation of the service infraction;

  • (b) issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the service infraction; or

  • (c) laid the charge or caused it to be laid.

  However, he or she may conduct such a hearing if, having regard to all the circumstances, it is not practicable for any other superior commander, commanding officer or delegated officer to conduct the hearing.

Marginal note:Sanctions imposed by superior commander

• 163.1 (1) A superior commander who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in section 162.7.

• Marginal note:Sanctions imposed by commanding officer

  (2) A commanding officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e).

• Marginal note:Sanctions imposed by delegated officer

  (3) A delegated officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the following sanctions:

  • (a) a sanction referred to in paragraph 162.7(d) for not more than seven days;

  • (b) minor sanctions referred to in paragraph 162.7(e).

Marginal note:Obligation after referral

163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide not to proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer.

Marginal note:Subsequent summary hearing proceedings not precluded

163.3 A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time.

Marginal note:Limitation period

163.4 A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed.

Marginal note:No territorial limitation

163.5 Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada.

Review Authorities

Marginal note:Chief of the Defence Staff and other military authorities

• 163.6 (1) The review authorities in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing are the Chief of the Defence Staff and any other military authorities that are prescribed by the Governor in Council in regulations.

• Marginal note:When authorities may act

  (2) A review authority in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing may act on its own initiative or on application, made in accordance with regulations made by the Governor in Council, of the person found to have committed the service infraction.

Quashing of Findings

Marginal note:Authority to quash

• 163.7 (1) A review authority may quash a finding, by an officer who conducted a summary hearing, that a person has committed a service infraction.

• Marginal note:Effect of complete quashing

  (2) If a finding that a person has committed a service infraction is quashed and no other such finding was made at the summary hearing, every sanction imposed as a result of the quashed finding is also quashed and a new summary hearing may be held in relation to the service infraction as if no previous summary hearing had been held.

• Marginal note:Effect of partial quashing

  (3) In the case where more than one finding has been made that a person has committed a service infraction and a review authority quashes one or more but not all of them, if a sanction imposed is in excess of any that may be imposed in respect of the remaining findings or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Findings

Marginal note:Substitution of invalid or unsubstantiated findings

• 163.8 (1) A review authority may substitute a new finding for any finding that a person has committed a service infraction that was invalidly made or that cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears to the review authority that the officer who conducted the summary hearing was satisfied of the facts that establish the service infraction specified or involved in the new finding.

• Marginal note:Effect on sanction

  (2) If a new finding is substituted and a sanction imposed in respect of the original finding is in excess of a sanction that may be imposed in respect of the new finding or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Sanctions

Marginal note:Authority to substitute

• 163.9 (1) A review authority may substitute for any invalid sanction imposed by an officer who conducted a summary hearing any new sanction or sanctions that it considers appropriate.

• Marginal note:Condition applicable to new sanction

  (2) If a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than that other sanction.

Commutation, Mitigation and Remission of Sanctions

Marginal note:Authority to commute, mitigate or remit sanctions

• 163.91 (1) A review authority may commute, mitigate or remit any or all of the sanctions imposed by an officer who conducted a summary hearing.

• Marginal note:Definitions

  (2) The following definitions apply in subsection (1).

  commute

  commute means to replace a sanction with another sanction that is lower in the scale of sanctions. (commuer)

  mitigate

  mitigate means to impose a lesser amount of the same sanction. (mitiger)

  remit

  remit means to exempt a person from the requirement to undergo the whole or any part of a sanction. (remettre)

164 [Repealed, 2019, c. 15, s. 25]

164.1 [Repealed, 2019, c. 15, s. 25]

164.2 [Repealed, 2019, c. 15, s. 25]

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred

• 165 (1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.

• Marginal note:Meaning of prefer

  (2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator.

Director of Military Prosecutions

Marginal note:Appointment

• 165.1 (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Military Prosecutions.

• Marginal note:Tenure of office and removal

  (2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

• Marginal note:Powers of inquiry committee

  (2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Re-appointment

  (3) The Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

165.11 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.

Marginal note:Preferring charges

• 165.12 (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

  • (a) prefer the charge; or

  • (b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

• Marginal note:Irregularity, informality or defect

  (1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.

• Marginal note:Withdrawing charges

  (2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

• Marginal note:Effect of withdrawing charge

  (3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

• Marginal note:Effect of not preferring charge

  (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.

Marginal note:Reasons for not proceeding

165.13 If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.

165.14 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

165.15 The Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.

Marginal note:Acting Director of Military Prosecutions

165.16 The powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.

Marginal note:Relationship to Judge Advocate General

• 165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

• Marginal note:General instructions

  (2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

• Marginal note:Specific instructions

  (3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

• Marginal note:Availability to public

  (4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

• Marginal note:Exception

  (5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.

• Marginal note:Copies to Minister

  (6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

Court Martial Administrator

Marginal note:Appointment

165.18 There shall be a person appointed to be the Court Martial Administrator.

Marginal note:Duties

• 165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

• Marginal note:Summoning of accused person

  (1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

• Marginal note:Other duties

  (2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

• Marginal note:Relationship to Chief Military Judge

  (3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

Marginal note:Convening General Court Martial

• 165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

  • (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

  • (b) an offence punishable under section 130 that is punishable by imprisonment for life; or

  • (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

• Marginal note:Consent to be tried by Standing Court Martial

  (2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

• Marginal note:Withdrawal of consent

  (3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.

Marginal note:Convening Standing Court Martial

165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

• (a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or

• (b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.

Marginal note:Choice of accused

• 165.193 (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.

• Marginal note:Notification

  (2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

• Marginal note:Failure to make choice

  (3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.

• Marginal note:New choice — as of right

  (4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

• Marginal note:New choice — with consent

  (5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

• Marginal note:Two or more accused

  (6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.

• Marginal note:Convening of court martial

  (7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.

Marginal note:Acting Court Martial Administrator

165.2 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

Military Judges

Marginal note:Appointment

• 165.21 (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.

• Marginal note:Oath

  (2) Every military judge shall, before commencing the duties of office, take the following oath of office:

  I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

• Marginal note:Removal for cause

  (3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.

• Marginal note:Ceasing to hold office

  (4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

• Marginal note:Resignation

  (5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

Reserve Force Military Judges

Marginal note:Panel established

• 165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who

  • (a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;

  • (b) has been a military judge;

  • (c) has presided at a Standing Court Martial or a Special General Court Martial; or

  • (d) has been a judge advocate at a court martial.

• Marginal note:Reserve force military judge

  (2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

• Marginal note:Oath

  (3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:

  I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

Marginal note:Removal from panel

• 165.221 (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.

• Marginal note:Automatic removal from panel

  (2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge attaining the age of 60 years.

• Marginal note:Voluntary removal from panel

  (3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

Marginal note:Chief Military Judge

• 165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

• Marginal note:Training

  (2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.

Marginal note:Restriction on activities

165.223 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.

Duties and Immunity of Military Judges

Marginal note:Judicial duties and functions

• 165.23 (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

• Marginal note:Other duties and functions

  (2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.

• Marginal note:Boards of inquiry

  (3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

Marginal note:Immunity

165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

Chief Military Judge

Marginal note:Chief Military Judge

• 165.24 (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.

• Marginal note:Rank

  (2) The Chief Military Judge holds a rank that is not less than colonel.

Marginal note:Duties and functions

165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

Marginal note:Delegation

165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.

Marginal note:Delegation

165.27 The Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.

Marginal note:Deputy Chief Military Judge

165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.

Marginal note:Power, duties and functions

165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.

Marginal note:Rules of practice and procedure

165.3 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

• (a) pre-trial conferences and other preliminary proceedings;

• (b) the making of applications under section 158.7;

• (c) the bringing of persons before a military judge under section 159;

• (d) the scheduling of trials by court martial;

• (e) the minutes of proceedings of courts martial and other proceedings;

• (f) documents, exhibits or other things connected with any proceeding, including public access to them; and

• (g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.

Military Judges Inquiry Committee

Marginal note:Composition of Committee

• 165.31 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.

• Marginal note:Chairperson

  (2) The Chief Justice shall appoint one of the judges to act as Chairperson.

• Marginal note:Powers of inquiry committee

  (3) The inquiry committee has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

Marginal note:Inquiry required

• 165.32 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

• Marginal note:Other inquiry

  (2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.

• Marginal note:Examination and recommendation

  (3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.

• Marginal note:Notice to military judge

  (4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

• Marginal note:Inquiry held in public or private

  (5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.

• Marginal note:Counsel

  (6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.

• Marginal note:Recommendation to the Governor in Council

  (7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,

  • (a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of

    • (i) infirmity,

    • (ii) having been guilty of misconduct,

    • (iii) having failed in the due execution of his or her judicial duties, or

    • (iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or

  • (b) the military judge does not satisfy the physical and medical fitness standards applicable to officers.

• Marginal note:Report

  (8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

Military Judges Compensation Committee

Marginal note:Composition of Committee

• 165.33 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

  • (a) one person nominated by the military judges;

  • (b) one person nominated by the Minister; and

  • (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

• Marginal note:Tenure and removal

  (2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.

• Marginal note:Reappointment

  (3) A member is eligible to be reappointed for one further term.

• Marginal note:Absence or incapacity

  (4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

• Marginal note:Vacancy

  (5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

• Marginal note:Quorum

  (6) All three members of the compensation committee together constitute a quorum.

• Marginal note:Remuneration

  (7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

Marginal note:Mandate

• 165.34 (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

• Marginal note:Factors to be considered

  (2) In conducting its inquiry, the compensation committee shall consider

  • (a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

  • (b) the role of financial security of the judiciary in ensuring judicial independence;

  • (c) the need to attract outstanding candidates to the judiciary; and

  • (d) any other objective criteria that the committee considers relevant.

• Marginal note:Quadrennial inquiry

  (3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

• Marginal note:Postponement

  (4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

Marginal note:Other inquiries

• 165.35 (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1).

• Marginal note:Report

  (2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee.

• Marginal note:Continuance of duties

  (3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee.

Marginal note:Extension

165.36 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

Marginal note:Minister’s duties

• 165.37 (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

• Marginal note:Response

  (2) The Minister shall respond to a report within six months after receiving it.

General Courts Martial

Marginal note:Jurisdiction

166 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

Marginal note:Punishment limitation

166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

Marginal note:Composition

• 167 (1) A General Court Martial is composed of a military judge and a panel of five members.

• Marginal note:Rank of senior member

  (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.

• (3) [Repealed, 2013, c. 24, s. 47]

• Marginal note:Ranks for trial of brigadier-general or above

  (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

• Marginal note:Rank for trial of colonel

  (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.

• Marginal note:Rank for trial of lieutenant-colonel or lower-ranked officer

  (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.

• Marginal note:Rank for trial of non-commissioned member

  (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.

Marginal note:Ineligibility to serve

168 None of the following persons may sit as a member of the panel of a General Court Martial:

• (a) an officer or non-commissioned member who is a lawyer or notary;

• (b) a witness for the prosecution or the accused person;

• (c) the commanding officer of the accused person;

• (d) a member of the military police;

• (e) an officer below the rank of captain;

• (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

• (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

169 [Repealed, 2008, c. 29, s. 10]

170 [Repealed, 2008, c. 29, s. 10]

171 [Repealed, 2008, c. 29, s. 10]

172 [Repealed, 2008, c. 29, s. 10]

Standing Courts Martial

Marginal note:Jurisdiction

173 A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

Marginal note:Composition

174 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

Marginal note:Punishment limitation

175 A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

176 [Repealed, 2008, c. 29, s. 12]

177 [Repealed, 2008, c. 29, s. 12]

178 [Repealed, 2008, c. 29, s. 12]

Powers

Marginal note:Courts martial

• 179 (1) A court martial has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Military judges

  (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

• 180 (1) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.

• Marginal note:Exception

  (2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.

• Marginal note:Factors to be considered

  (3) In determining whether the order is in the interest of the proper administration of military justice, the military judge shall consider

  • (a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;

  • (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

  • (c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;

  • (d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;

  • (e) the protection of military justice system participants who are involved in the proceedings;

  • (f) whether effective alternatives to the making of the order are available in the circumstances;

  • (g) the salutary and deleterious effects of the order; and

  • (h) any other factor that the military judge considers relevant.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

• Marginal note:Reasons to be stated

  (5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.

• Marginal note:Witnesses

  (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.

• Marginal note:Clearing court

  (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.

Production of certain records

Marginal note:Definition of record

180.01 For the purposes of sections 180.02 to 180.08, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.

Marginal note:Production of record to accused

• 180.02 (1) Except in accordance with sections 180.03 to 180.08, no record relating to a complainant or a witness shall be produced to an accused person in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

  • (a) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code;

  • (b) any offence under the Criminal Code, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involved a violation of the complainant’s sexual integrity and would be an offence referred to in paragraph (a) if it had occurred on or after that day.

• Marginal note:Application of provisions

  (2) Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record relating to the complainant or a witness that is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness, as the case may be, has expressly waived the application of those sections.

• Marginal note:Duty of prosecutor to give notice

  (3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that the record is in the prosecutor’s possession or control, but, in doing so, the prosecutor shall not disclose the record’s contents.

Marginal note:Application for production

• 180.03 (1) An accused person who seeks the production of a record may make an application for its production to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial.

• Marginal note:Form and content of application

  (2) The application must be made in writing and set out

  • (a) particulars identifying the record that the accused person seeks to have produced and the name of the person who has possession or control of the record; and

  • (b) the grounds on which the accused person relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

• Marginal note:Insufficient grounds

  (3) Any one or more of the following assertions by the accused person are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

  • (a) the record exists;

  • (b) the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) the record relates to the incident that is the subject matter of the proceedings;

  • (d) the record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) the record may relate to the credibility of the complainant or witness;

  • (f) the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) the record may reveal allegations of sexual abuse of the complainant by a person other than the accused person;

  • (h) the record relates to the sexual activity of the complainant with any person, including the accused person;

  • (i) the record relates to the presence or absence of a recent complaint;

  • (j) the record relates to the complainant’s sexual reputation;

  • (k) the record was made close in time to the complaint or to the activity that forms the subject matter of the charge against the accused person.

• Marginal note:Service of application

  (4) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused person, the record relates, at least 14 days before the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice.

• Marginal note:Service on other persons

  (5) The military judge may, at any time, order that the application be served on any person to whom he or she considers the record may relate.