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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 2Service Offences and Punishments (continued)

Prohibition Orders (continued)

Marginal note:Forfeiture

  •  (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.

  • Marginal note:Disposal

    (2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.

  • 1995, c. 39, s. 176

Marginal note:Authorizations revoked or amended

 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

  • 1995, c. 39, s. 176

Marginal note:Return to owner

 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,

  • (a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and

  • (b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,

the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

  • 1995, c. 39, s. 176

Intermittent Sentences

Marginal note:Imprisonment or detention

  •  (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

    • (a) that the sentence be served intermittently at the times specified in the order; and

    • (b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.

  • Marginal note:Application to vary intermittent sentence

    (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying

    • (a) to their commanding officer, in the case of a sentence imposed by summary trial; or

    • (b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.

  • Marginal note:New sentence of imprisonment or detention

    (3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.

  • Marginal note:Hearing into breach of conditions

    (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by

    • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or

    • (b) a military judge, in the case of a condition imposed by a court martial.

  • Marginal note:Consequences of breach

    (5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

    • (a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

    • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.

  • R.S., 1985, c. N-5, s. 148
  • 2013, c. 24, s. 24

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

 Where a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.

  • R.S., 1985, c. N-5, s. 149
  • 2011, c. 5, s. 7

 [Repealed before coming into force, 2005, c. 22, s. 47]

Punishment for Certain Offences

Marginal note:Punishment for certain offences

  •  (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

  • Marginal note:Offender must be notified

    (2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.

  • 2001, c. 41, s. 99

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]

DIVISION 3Arrest and Pre-Trial Custody

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Division.

custody review officer

custody review officer, in respect of a person in custody, means

  • (a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

  • (b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer. (officier réviseur)

designated offence

designated offence means

  • (a) an offence that is punishable under section 130 that is

  • (b) an offence under this Act where the minimum punishment is imprisonment for life;

  • (c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

  • (d) an offence under this Act that is a criminal organization offence; or

  • (e) an offence under this Act that is a terrorism offence. (infraction désignée)

  • R.S., 1985, c. N-5, s. 153
  • R.S., 1985, c. 31 (1st Supp.), s. 47
  • 1998, c. 35, s. 40
  • 2001, c. 41, s. 100
  • 2012, c. 1, s. 48(E)
  • 2013, c. 24, s. 26(F)
 
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