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

Full Document:  

Act current to 2022-06-20 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 3Arrest and Pre-Trial Custody (continued)

Review by Military Judge (continued)

Marginal note:Reasons

  •  (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

 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 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.

  • R.S., 1985, c. N-5, s. 160
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 1998, c. 35, s. 42
  • 2019, c. 15, s. 24

Laying of Charge

Marginal note:Laying of charge

  •  (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

  •  (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

 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

 [Repealed, 2019, c. 15, s. 25]

 [Repealed, 2019, c. 15, s. 25]

DIVISION 5Summary Hearings

Interpretation

Marginal note:Definitions

 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

 Service infractions may be dealt with only by summary hearing.

Marginal note:Not offence

 A service infraction is not an offence under this Act.

Marginal note:Prior trial — offence

  •  (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

 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

  •  (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

 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

 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

 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

 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

 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

 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

  •  (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.

  • 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
  • 2019, c. 15, s. 25
 
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