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

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Act current to 2022-05-02 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 2Service Offences and Punishments (continued)

Conviction of Cognate Offence (continued)

Marginal note:Conviction of offence in circumstances involving lower punishment

 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.

  • R.S., c. N-4, s. 122

Marginal note:Powers on service trial of civil offences

 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.

  • R.S., c. N-4, s. 122

Marginal note:Offence charged, attempt proved

  •  (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.

  • Marginal note:Attempt charged, full offence proved

    (2) If, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be found guilty of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

  • Marginal note:Conviction a bar

    (3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.

  • R.S., 1985, c. N-5, s. 137
  • 1992, c. 16, s. 1
  • 2013, c. 24, s. 18(E)

Marginal note:Where tribunal may make special finding of guilty

 Where a service tribunal 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 his defence,

the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars.

  • R.S., c. N-4, s. 124

Punishments

Marginal note:Scale of punishments

  •  (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.

  • R.S., 1985, c. N-5, s. 139
  • 1998, c. 35, s. 35

Marginal note:Imprisonment for shorter term

 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.

  • R.S., 1985, c. N-5, s. 140
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 36

Marginal note:Dismissal as accompanying punishment

  •  (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.

  • 1998, c. 35, s. 36

Marginal note:Reduction in rank as accompanying punishment

 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.

  • 1998, c. 35, s. 36

 [Repealed, 2013, c. 24, s. 19]

 [Repealed, 2013, c. 24, s. 19]

Marginal note:Dismissal with disgrace

  •  (1) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding 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.

  • R.S., 1985, c. N-5, s. 141
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, ss. 37, 92

Marginal note:Detention

  •  (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.

  • R.S., 1985, c. N-5, s. 142
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 38
  • 2013, c. 24, s. 20

Marginal note:Reduction in rank

  •  (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.

  • R.S., 1985, c. N-5, s. 143
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Marginal note:Forfeiture of seniority

 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.

  • R.S., 1985, c. N-5, s. 144
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 39

Marginal note:Fine

  •  (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 service tribunal that imposes the fine.

  • Marginal note:Variation of terms of payment

    (3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.

  • R.S., 1985, c. N-5, s. 145
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 39

Marginal note:Civil enforcement of fines

  •  (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.

  • 2013, c. 24, s. 21

Marginal note:Minor punishments

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

  • R.S., c. N-4, s. 125

Marginal note:Limitation

 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.

  • R.S., c. N-4, s. 125

Prohibition Orders

Marginal note:Prohibition order

  •  (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.

  • 1995, c. 39, s. 176
  • 1996, c. 19, s. 83.1
  • 2012, c. 1, s. 50
  • 2013, c. 24, s. 22
  • 2018, c. 16, ss. 168, 188(E)

Marginal note:Requirement to surrender

 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.

  • 1995, c. 39, s. 176
  • 2013, c. 24, s. 23

Marginal note:Forfeiture

  •  (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.

  • 1995, c. 39, s. 176

Marginal note:Authorizations revoked or amended

 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.

  • 1995, c. 39, s. 176
 
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