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

Full Document:  

Act current to 2019-11-19 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 1Disciplinary Jurisdiction of the Canadian Forces (continued)

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

  •  (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 service tribunal, civil court or court of a foreign state on a charge of having committed that offence; or

    • (b) has been found guilty by a service tribunal, 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 pursuant to section 249.11 or 249.16 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 service tribunal or a civil court in respect of that offence.

  • R.S., 1985, c. N-5, s. 66
  • R.S., 1985, c. 31 (1st Supp.), s. 45
  • 1998, c. 35, s. 20
  • 2013, c. 24, s. 14

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

 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.

  • R.S., c. N-4, s. 57

Place of Trial

Marginal note:No territorial limitation

 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.

  • R.S., c. N-4, s. 58

Period of Liability

Marginal note:When person is liable

  •  (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.

  • R.S., 1985, c. N-5, s. 69
  • 1990, c. 14, s. 7
  • 1991, c. 43, s. 12
  • 1993, c. 34, s. 92
  • 1998, c. 35, s. 21
  • 2008, c. 29, s. 2

Limitations with respect to Certain Offences

Marginal note:Offences not triable by service tribunal

 A service tribunal shall not try any person charged with any of the following offences committed in Canada:

  • R.S., 1985, c. N-5, s. 70
  • 1998, c. 35, s. 22

Jurisdiction of Civil Courts

Marginal note:No interference with civil jurisdiction

 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.

  • R.S., 1985, c. N-5, s. 71
  • R.S., 1985, c. 31 (1st Supp.), s. 46

DIVISION 2Service Offences and Punishments

Responsibility for Offences

Marginal note:Parties to offences

  •  (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.

  • R.S., c. N-4, s. 62

Civil Defences

Marginal note:Rules and principles of civil courts applicable

 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.

  • 2013, c. 24, s. 15

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

 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.

  • 2013, c. 24, s. 15

Misconduct of Commanders in Presence of Enemy

Marginal note:Offences by commanders when in action

 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.

  • R.S., 1985, c. N-5, s. 73
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 24

Misconduct of any Person in Presence of Enemy

Marginal note:Offences by any person in presence of enemy

 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.

  • R.S., 1985, c. N-5, s. 74
  • 1998, c. 35, s. 25
 
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