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

Marginal note:Referral to court martial for review

• 202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.

• Marginal note:Convening court martial

  (2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.

• Marginal note:Review of finding by court martial

  (3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.

• Marginal note:Finding not revoked

  (4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Assessment order

  (5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports

Marginal note:Conditions for custody

• 202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

  • (a) the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;

  • (b) custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; or

  • (c) the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e).

• Marginal note:Report of medical practitioner in writing

  (2) For the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing.

• Marginal note:No treatment order on assessment

  (3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment.

Marginal note:No custody or release orders during assessment

• 202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

• Marginal note:Variation of assessment order

  (2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances.

Marginal note:Assessment report

• 202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

• Marginal note:Assessment report to be filed with court

  (2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.

• Marginal note:Distribution of assessment report

  (3) Subject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.

• Marginal note:Assessment report part of record

  (4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared.

Marginal note:Effective date of disposition

202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.

Marginal note:Procedure at disposition hearing

• 202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

• Marginal note:Hearing to be informal

  (2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

• Marginal note:Interested person may be party

  (3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.

• Marginal note:Notice of hearing — parties

  (4) The court martial shall give notice of the hearing to the parties.

• Marginal note:Notice of hearing — victim

  (5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.

• Marginal note:Notice of release from custody and intended place of residence

  (6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release and the accused person’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.

• Marginal note:Order excluding public

  (7) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.

• Marginal note:Right to counsel

  (8) The accused person or any other party has the right to be represented by counsel.

• Marginal note:Assigning counsel

  (9) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.

• Marginal note:Right of accused person to be present

  (10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

• Marginal note:Removal or absence of accused person

  (11) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:

  • (a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;

  • (b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or

  • (c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).

• Marginal note:Rights of parties at hearing

  (12) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted in writing to the court martial.

• Marginal note:Witnesses

  (13) A party may not compel the attendance of witnesses, but may request the court martial to do so.

• Marginal note:Video links

  (14) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.

• Marginal note:Determination of mental condition of accused person

  (15) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement.

• Marginal note:Victim impact statement

  (16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.

• Marginal note:Procedure

  (17) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

• Marginal note:Presentation of victim statement

  (18) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate.

• Marginal note:Consideration by court martial

  (19) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of making or reviewing the disposition.

• Marginal note:Copy of statement

  (20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.

• Marginal note:Inquiry by court martial

  (21) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

• Marginal note:Adjournment

  (22) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

• (23) [Repealed, 2019, c. 15, s. 65]

Marginal note:Additional conditions — safety and security

202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

• (a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

• (b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

Marginal note:Status quo pending Review Board’s hearing

• 202.21 (1) Where a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201, 202 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board.

• Marginal note:Variation of order

  (2) Notwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board.

• Marginal note:Subsequent court martial order takes precedence

  (3) Pending a disposition by the Review Board, where a court martial

  • (a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person; or

  • (b) imposes a sentence of imprisonment or detention on the accused person, that sentence takes precedence over any prior disposition made under paragraph 201(1)(b) or 202.16(1)(c).

• Marginal note:Disposition takes precedence over probation order

  (4) Where a disposition is made under paragraph 201(1)(b) or 202.16(1)(c) and the accused person is convicted or discharged conditionally under the Criminal Code by a civil court in respect of another offence but is not sentenced to a term of imprisonment in respect of that other offence, the disposition shall come into force and, notwithstanding any provision of the Criminal Code, takes precedence over any probation order made in respect of the offence.