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

Marginal note:Order denying access to information used to obtain a warrant

• 196.25 (1) A military judge may, on application made at the time of issuing a warrant, make an order prohibiting access to and the disclosure of any information relating to the warrant on the ground that

  • (a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

  • (b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

• Marginal note:Reasons

  (2) For the purpose of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

  • (a) if disclosure of the information would

    • (i) compromise the identity of a confidential informant,

    • (ii) compromise the nature and extent of an ongoing investigation,

    • (iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

    • (iv) prejudice the interests of an innocent person; and

  • (b) for any other sufficient reason.

• Marginal note:Procedure

  (3) If an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the military judge considers desirable in the circumstances, including terms and conditions concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the military judge immediately on determination of the application, and that packet shall be kept in the custody of the Court Martial Administrator in a place to which the public has no access or in any other place that the judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

• Marginal note:Application for variance of order

  (4) An application to terminate the order or vary any of its terms and conditions may be made to the military judge who made the order or to another military judge.

DIVISION 6.2Identification of Accused Persons and Offenders

Marginal note:Meaning of designated offence

196.26 In this Division, designated offence means an offence under any of the following provisions of this Act:

• (a) paragraphs 75(a) to (d) (offences related to security);

• (b) paragraphs 77(a) and (d) to (i) (offences related to operations);

• (c) section 78 (spying for the enemy);

• (d) section 79 (mutiny with violence);

• (e) section 80 (mutiny without violence);

• (f) paragraphs 81(a) and (b) (offences related to mutiny);

• (g) section 84 (striking or offering violence to a superior officer);

• (h) paragraphs 87(a) to (c) (resisting arrest or custody);

• (i) section 95 (abuse of subordinates);

• (j) section 100 (setting free without authority or allowing or assisting escape);

• (k) section 101 (escape from custody);

• (l) section 101.1 (failure to comply with conditions);

• (m) section 102 (hindering arrest or confinement or withholding assistance);

• (n) paragraphs 111(1)(a) and (b) (improper driving of vehicles);

• (o) section 113 (causing fires);

• (p) section 114 (stealing);

• (q) section 115 (receiving);

• (r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

• (s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

• (t) section 118 (offences in relation to tribunals);

• (u) section 118.1 (failure to appear or attend);

• (v) section 119 (false evidence);

• (w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

• (x) section 127 (negligent handling of dangerous substances);

• (y) section 128 (conspiracy); or

• (z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

Marginal note:Fingerprints and photographs

• 196.27 (1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

• Marginal note:Use of force

  (2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

• Marginal note:Publication

  (3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

Marginal note:No liability for acting under this Division

196.28 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay, on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

DIVISION 7Mental Disorder

Interpretation

Marginal note:Definitions

197 For the purposes of this Division,

appropriate province

appropriate province means

• (a) in respect of a court martial held in Canada, the province in which it is held, or

• (b) in respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person; (province concernée)

assessment

assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; (évaluation)

disposition

disposition means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4); (décision)

medical practitioner

medical practitioner means a person who is entitled to practise medicine by the laws of a province; (médecin)

Review Board

Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code; (commission d’examen)

significant threat to the safety of the public

significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. (risque important pour la sécurité du public)

Fitness to Stand Trial

Marginal note:Presumption of fitness

• 198 (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial.

• Marginal note:Court directs issue to be tried

  (2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial.

• Marginal note:Burden of proof

  (3) An accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial.

• Marginal note:Order for assessment

  (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person.

• Marginal note:Subsequent proceedings

  (5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial.

Marginal note:Postponing trial of issue

• 199 (1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.

• Marginal note:Issue not tried

  (2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried.

Marginal note:Trial proceeds where accused fit to stand trial

• 200 (1) Where the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen.

• Marginal note:Procedure where accused unfit to stand trial

  (2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall

  • (a) set aside any plea that has been made; and

  • (b) hold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay.

• Marginal note:Order for assessment

  (3) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person.

Marginal note:Disposition

• 201 (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

  • (a) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

  • (b) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

• Marginal note:Treatment not a condition

  (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

Marginal note:Treatment disposition

• 202 (1) Where the finding on trial of the issue is that an accused person is unfit to stand trial and the court martial has not made a disposition under section 201, the court martial may, on application by the prosecutor, by order, direct that treatment of the accused person be carried out for a specified period not exceeding sixty days, subject to such conditions as the court martial considers appropriate, and, where the accused person is not detained in custody, direct that the accused person submit to that treatment by the person or at the place specified in the order.

• Marginal note:Condition

  (2) No disposition may be made under this section unless the court martial is satisfied, on the basis of evidence described in subsection (3), that a specific treatment should be administered to the accused person for the purpose of making the accused person fit to stand trial.

• Marginal note:Evidence required

  (3) The evidence required by a court martial for the purposes of subsection (2) shall be a statement by a medical practitioner that the practitioner has made an assessment of the accused person and is of the opinion, based on the grounds specified, that

  • (a) the accused person, at the time of the assessment, was unfit to stand trial;

  • (b) the psychiatric treatment and any other related medical treatment specified by the practitioner will likely render the accused person fit to stand trial within a period not exceeding sixty days and that without that treatment the accused person is likely to remain unfit to stand trial;

  • (c) the risk of harm to the accused person from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

  • (d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (2), taking into consideration the opinions stated in paragraphs (b) and (c).

• Marginal note:Notice

  (3.1) A court martial shall not make a disposition under this section unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

• Marginal note:Challenge by accused person

  (4) On receipt of the notice referred to in subsection (3.1), an accused person may challenge an application of the prosecutor under this section, and may adduce any evidence for that purpose.

• Marginal note:Exception

  (5) A court martial shall not direct, and no direction given pursuant to a disposition made under this section shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment prescribed in regulations.

• Marginal note:Definitions

  (6) In subsection (5), electro-convulsive therapy and psychosurgery have the meaning assigned by the regulations.

• Marginal note:Consent of hospital required for treatment

  (7) A court martial shall not make a disposition under this section without the consent of the person in charge of the hospital or place where the accused person is to be treated or of the person to whom responsibility for the treatment of the accused person is assigned by the court martial.

• Marginal note:Consent of accused person not required for treatment

  (8) A court martial may direct that treatment of an accused person be carried out pursuant to a disposition made under this section without the consent of the accused person or a person who, according to the laws of the jurisdiction where the disposition is made, is authorized to consent for the accused person.