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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 5Summary Trials (continued)

Summary Trials by Commanding Officers (continued)

Marginal note:When no summary trial

  •  (1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    • (a) another officer who has jurisdiction to try the accused person by summary trial; or

    • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

  • Marginal note:Subsequent proceedings not precluded

    (2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

  • Marginal note:Charge may be referred

    (3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

  • 1998, c. 35, s. 42

Summary Trial by Superior Commanders

Marginal note:Jurisdiction

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

    • (a) the accused person is an officer below the rank of colonel or a non-commissioned member above the rank of sergeant;

    • (b) having regard to the gravity of the offence, the superior commander 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 superior commander is precluded from trying; and

    • (e) the superior commander 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 superior commander 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:Exceptions — military judge and rank

    (1.3) Despite paragraph (1)(a), a superior commander may not try a military judge by summary trial and may only try an officer of the rank of lieutenant-colonel by summary trial if the superior commander is of or above the rank of colonel.

  • Marginal note:Prohibition on presiding

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

    • (a) the superior commander 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 superior commander as a commanding officer; or

    • (c) the superior commander laid the charge or caused it to be laid.

  • (3) [Repealed, 2013, c. 24, s. 36]

  • Marginal note:Sentences

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

    • (a) severe reprimand;

    • (b) reprimand; and

    • (c) fine.

  • Marginal note:Officer cadets

    (5) A superior commander who passes sentence on an officer cadet may include, in addition to the punishments described in subsection (4), minor punishments.

  • R.S., 1985, c. N-5, s. 164
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1991, c. 43, s. 15
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 5
  • 2013, c. 24, s. 36

Marginal note:When no summary trial

  •  (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    • (a) another officer who has jurisdiction to try the accused person by summary trial; or

    • (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

  • Marginal note:Subsequent proceedings not precluded

    (2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

  • Marginal note:Charge may be referred

    (3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

  • 1998, c. 35, s. 42

Referral to Director of Military Prosecutions

Marginal note:Duty to refer

  •  (1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.

  • Marginal note:Exception

    (2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if

    • (a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and

    • (b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

  • 1998, c. 35, s. 42

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred

  •  (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.

  • R.S., 1985, c. N-5, s. 165
  • 1992, c. 16, s. 2
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 37

Director of Military Prosecutions

Marginal note:Appointment

  •  (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.

  • 1992, c. 16, s. 2
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 38

Marginal note:Duties and functions

 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.

  • 1998, c. 35, s. 42

Marginal note:Preferring charges

  •  (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.

  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 39

Marginal note:Referral of charge

 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

  • 1998, c. 35, s. 42

 [Repealed, 2008, c. 29, s. 6]

Marginal note:Barristers and advocates to assist

 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.

  • 1998, c. 35, s. 42

Marginal note:Acting Director of Military Prosecutions

 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.

  • 1998, c. 35, s. 42

Marginal note:Relationship to Judge Advocate General

  •  (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.

  • 1998, c. 35, s. 42

Court Martial Administrator

Marginal note:Appointment

 There shall be a person appointed to be the Court Martial Administrator.

  • 1998, c. 35, s. 42

Marginal note:Duties

  •  (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.

  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 7
  • 2013, c. 24, s. 40

Marginal note:Convening General Court Martial

  •  (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.

  • 2008, c. 29, s. 8
 
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