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

Full Document:  

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

PART IIICode of Service Discipline (continued)

DIVISION 3Arrest and Pre-Trial Custody (continued)

Initial Review

Marginal note:Review of report of custody

  •  (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).

  • 1998, c. 35, s. 42

Marginal note:Continuing duty to release

 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.

  • 1998, c. 35, s. 42

Marginal note:Duty to retain in custody if designated offence

 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.

  • 1998, c. 35, s. 42

Marginal note:Duty to review where charge not laid

 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.

  • 1998, c. 35, s. 42

Marginal note:Release with or without conditions

  •  (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: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 respecting conditions that a custody review officer may make under subsection (1).

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 30(F)

Review by Military Judge

Marginal note:Review of directions

  •  (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.

  • 2013, c. 24, s. 31

Marginal note:Hearing by military judge

  •  (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.

  • R.S., 1985, c. N-5, s. 159
  • R.S., 1985, c. 31 (1st Supp.), s. 52
  • 1998, c. 35, s. 42

Marginal note:Onus on Canadian Forces

 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.

  • 1998, c. 35, s. 42

Marginal note:Justification for retention in custody

 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 service tribunal or a 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.

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 32

Marginal note:Onus on person in custody

  •  (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.

  • 1998, c. 35, s. 42

Marginal note:Release with or without undertaking

  •  (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.

  • 1998, c. 35, s. 42

Marginal note:Hearing may be adjourned

 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.

  • 1998, c. 35, s. 42

Marginal note:Alternate means of hearing

  •  (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.

  • 1998, c. 35, s. 42

Marginal note:Reasons

 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

  • 1998, c. 35, s. 42

Duty of Director of Military Prosecutions

Marginal note:Review after 90 days

 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.

  • 1998, c. 35, s. 42

Review by Court Martial Appeal Court

Marginal note:Review of direction

  •  (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.

  • 1998, c. 35, s. 42

Direction Cancelled

Marginal note:Regulations

 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.

  • 2013, c. 24, s. 33

DIVISION 4Commencement of Proceedings

Interpretation

Marginal note:Definition of commanding officer

 In this Division, commanding officer, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.

  • R.S., 1985, c. N-5, s. 160
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 42

Laying of Charge

Marginal note:Laying of charge

  •  (1) Proceedings against a person who is alleged to have committed a service offence 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) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.

  • R.S., 1985, c. N-5, s. 161
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 34

Marginal note:Referral to commanding officer

 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

  • 1998, c. 35, s. 42

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

  • R.S., 1985, c. N-5, s. 162
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 3

Right to Trial by Court Martial

Marginal note:Election

 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.

  • 1998, c. 35, s. 42

Marginal note:Referral of charge

 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.

  • 1998, c. 35, s. 42

DIVISION 5Summary Trials

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Division.

commanding officer

commanding officer, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160. (commandant)

superior commander

superior commander means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)

  • 1998, c. 35, s. 42

Summary Trials by Commanding Officers

Marginal note:Jurisdiction

  •  (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

    • (a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

    • (b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

    • (c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

    • (d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and

    • (e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

  • Marginal note:Limitation periods

    (1.1) A commanding officer may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.

  • Marginal note:Waiver

    (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

  • Marginal note:Prohibition on presiding

    (2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if

    • (a) the commanding officer carried out or directly supervised the investigation of the offence;

    • (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

    • (c) the commanding officer laid the charge or caused it to be laid.

  • Marginal note:Sentences

    (3) Subject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

    • (a) detention for a period not exceeding thirty days;

    • (b) reduction in rank by one rank;

    • (c) severe reprimand,

    • (d) reprimand,

    • (e) a fine not exceeding basic pay for one month, and

    • (f) minor punishments.

  • Marginal note:Delegation

    (4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

    • (a) detention not exceeding fourteen days;

    • (b) severe reprimand;

    • (c) reprimand;

    • (d) a fine not exceeding basic pay for fifteen days; and

    • (e) minor punishments.

  • R.S., 1985, c. N-5, s. 163
  • R.S., 1985, c. 31 (1st Supp.), ss. 53, 60
  • 1991, c. 43, s. 14
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 4
  • 2013, c. 24, s. 35
 
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