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

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Act current to 2019-07-01 and last amended on 2019-06-21. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Military Judges Compensation Committee (continued)

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  • (3) [Repealed, 2013, c. 24, s. 47]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) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.

  • Marginal note:Exception

    (2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary

    • (a) in the interests of public safety or public morals;

    • (b) for the maintenance of order or the proper administration of military justice; or

    • (c) to prevent injury to international relations, national defence or national security.

  • Marginal note:Witnesses

    (3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.

  • Marginal note:Clearing court

    (4) For the purpose of any deliberation, a court martial or military judge, as the case may be, may cause the place where the proceedings are being held to be cleared.

  • R.S., 1985, c. N-5, s. 180
  • 1992, c. 16, s. 8
  • 1998, c. 35, s. 43
  • 2001, c. 41, s. 101
  • 2013, c. 24, s. 50

Rules of Evidence

Marginal note:Rules of evidence

  •  (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.

  • Marginal note:Publication

    (2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.

  • R.S., 1985, c. N-5, s. 181
  • 2013, c. 24, s. 51
 
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