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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 6Trial by Court Martial (continued)

Military Judges Compensation Committee

Marginal note:Composition of Committee

  •  (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

    • (a) one person nominated by the military judges;

    • (b) one person nominated by the Minister; and

    • (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

  • Marginal note:Tenure and removal

    (2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.

  • Marginal note:Reappointment

    (3) A member is eligible to be reappointed for one further term.

  • Marginal note:Absence or incapacity

    (4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

  • Marginal note:Vacancy

    (5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

  • Marginal note:Quorum

    (6) All three members of the compensation committee together constitute a quorum.

  • Marginal note:Remuneration

    (7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

  • 2013, c. 24, s. 45

Marginal note:Mandate

  •  (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

  • Marginal note:Factors to be considered

    (2) In conducting its inquiry, the compensation committee shall consider

    • (a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

    • (b) the role of financial security of the judiciary in ensuring judicial independence;

    • (c) the need to attract outstanding candidates to the judiciary; and

    • (d) any other objective criteria that the committee considers relevant.

  • Marginal note:Quadrennial inquiry

    (3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

  • Marginal note:Postponement

    (4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

  • 2013, c. 24, s. 45

Marginal note:Other inquiries

  •  (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1).

  • Marginal note:Report

    (2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee.

  • Marginal note:Continuance of duties

    (3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee.

  • 2013, c. 24, s. 45

Marginal note:Extension

 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

  • 2013, c. 24, s. 45

Marginal note:Minister’s duties

  •  (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

  • Marginal note:Response

    (2) The Minister shall respond to a report within six months after receiving it.

  • 2013, c. 24, s. 45

General Courts Martial

Marginal note:Jurisdiction

 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

  • R.S., 1985, c. N-5, s. 166
  • 1998, c. 35, s. 42

Marginal note:Punishment limitation

 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

  • 2008, c. 29, s. 9

Marginal note:Composition

  •  (1) A General Court Martial is composed of a military judge and a panel of five members.

  • Marginal note:Rank of senior member

    (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.

  • (3) [Repealed, 2013, c. 24, s. 47]

  • Marginal note:Ranks for trial of brigadier-general or above

    (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

  • Marginal note:Rank for trial of colonel

    (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.

  • Marginal note:Rank for trial of lieutenant-colonel or lower-ranked officer

    (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.

  • Marginal note:Rank for trial of non-commissioned member

    (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.

  • R.S., 1985, c. N-5, s. 167
  • 1992, c. 16, s. 3
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 47

Marginal note:Ineligibility to serve

 None of the following persons may sit as a member of the panel of a General Court Martial:

  • (a) an officer or non-commissioned member who is a lawyer or notary;

  • (b) a witness for the prosecution or the accused person;

  • (c) the commanding officer of the accused person;

  • (d) a member of the military police;

  • (e) an officer below the rank of captain;

  • (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

  • (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

  • R.S., 1985, c. N-5, s. 168
  • 1992, c. 16, s. 4
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 48

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

 [Repealed, 2008, c. 29, s. 10]

Standing Courts Martial

Marginal note:Jurisdiction

 A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

  • R.S., 1985, c. N-5, s. 173
  • 1992, c. 16, s. 6
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 11

Marginal note:Composition

 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

  • R.S., 1985, c. N-5, s. 174
  • 1992, c. 16, s. 6
  • 1998, c. 35, s. 42

Marginal note:Punishment limitation

 A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

  • R.S., 1985, c. N-5, s. 175
  • 1991, c. 43, s. 16
  • 1998, c. 35, s. 42
  • 2008, c. 29, s. 12

 [Repealed, 2008, c. 29, s. 12]

 [Repealed, 2008, c. 29, s. 12]

 [Repealed, 2008, c. 29, s. 12]

Powers

Marginal note:Courts martial

  •  (1) A court martial has the same powers, rights and privileges — including 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:Military judges

    (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

  • R.S., 1985, c. N-5, s. 179
  • R.S., 1985, c. 31 (1st Supp.), s. 56
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 49(E)

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

  •  (1) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.

  • Marginal note:Exception

    (2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.

  • Marginal note:Factors to be considered

    (3) In determining whether the order is in the interest of the proper administration of military justice, the military judge shall consider

    • (a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;

    • (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

    • (c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;

    • (d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;

    • (e) the protection of military justice system participants who are involved in the proceedings;

    • (f) whether effective alternatives to the making of the order are available in the circumstances;

    • (g) the salutary and deleterious effects of the order; and

    • (h) any other factor that the military judge considers relevant.

  • Marginal note:No adverse inference

    (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

  • Marginal note:Reasons to be stated

    (5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.

  • Marginal note:Witnesses

    (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.

  • Marginal note:Clearing court

    (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.

Production of certain records

Marginal note:Definition of record

 For the purposes of sections 180.02 to 180.08, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.

 
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