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

Full Document:  

Act current to 2022-05-02 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 8.1Sex Offender Information (continued)

Suspension of Time Limits, Proceedings and Obligations (continued)

Marginal note:Determination — information relating to an operation

  •  (1) The Chief of the Defence Staff may determine that the communication, under section 6 of the Sex Offender Information Registration Act, of information that relates to an operation could jeopardize national security, international relations or the security of an operation that is within a class of operations designated by a regulation made under paragraph 227.2(b).

  • Marginal note:Notice

    (2) The Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.

  • Marginal note:Notice

    (3) The Chief of the Defence Staff shall notify the Provost Marshal without delay of the determination, and the Provost Marshal shall notify without delay any participant in the operation who is required to comply with section 6 of the Sex Offender Information Registration Act.

  • Marginal note:Effect of determination

    (4) A participant in the operation is exempted from the requirement under section 6 of the Sex Offender Information Registration Act to provide the information relating to the operation.

  • 2007, c. 5, s. 4
  • 2013, c. 24, s. 107(F)

Marginal note:Statutory Instruments Act

 The Statutory Instruments Act does not apply to a determination made by the Chief of the Defence Staff under subsection 227.15(1) or 227.16(1).

  • 2007, c. 5, s. 4

Marginal note:Annual Report

  •  (1) The Chief of the Defence Staff shall, within 30 days after the end of each year, submit a report to the Minister on the operation of sections 227.15 and 227.16 for that year that includes

    • (a) the number of determinations made under each of paragraphs 227.15(a) to (d) and the duration of the suspension resulting from each determination; and

    • (b) the number of determinations made under subsection 227.16(1) and the number of persons exempted under subsection 227.16(4) as a result of each determination.

  • Marginal note:Tabling in Parliament

    (2) The Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.

  • 2007, c. 5, s. 4

Disclosure of Information

Marginal note:Disclosure

  •  (1) At the request of the Provost Marshal, the Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall disclose information that is registered in the database, or the fact that information is registered in the database, to the Provost Marshal if the disclosure is necessary to enable the Provost Marshal to determine

    • (a) whether a person may be served with a notice under section 227.08;

    • (b) for the purpose of a proceeding under section 227.01 or subsection 227.04(1), 227.1(4) or 227.13(1) or for the purpose of an appeal respecting the legality of a decision made under any of those provisions, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, or was at any time, required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act;

    • (c) for the purpose of enabling compliance with the Sex Offender Information Registration Act, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act; or

    • (d) whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, may be the subject of a determination under subsection 227.15(1) or 227.16(1).

  • Marginal note:Disclosure by Provost Marshal

    (2) The Provost Marshal shall disclose the information

    • (a) to a prosecutor if the disclosure is necessary for the purpose of a proceeding for an order under section 227.01, a termination order under subsection 227.04(1) or 227.13(1) or an exemption order under subsection 227.1(4);

    • (b) to the Minister or counsel instructed by the Minister if the disclosure is necessary for the purpose of an appeal respecting the legality of a decision made in a proceeding referred to in paragraph (a);

    • (c) to a person’s commanding officer if the disclosure is necessary to enable the person to comply with the Sex Offender Information Registration Act; or

    • (d) to the Chief of the Defence Staff if the disclosure is necessary for the purpose of a determination under subsection 227.15(1) or 227.16(1).

  • Marginal note:Disclosure in proceedings

    (3) The prosecutor or the Minister or counsel instructed by the Minister may, if the information is relevant to the proceeding or appeal referred to in paragraph (2)(a) or (b), disclose it to the presiding judge, court or court martial.

  • 2007, c. 5, s. 4
  • 2010, c. 17, s. 56
  • 2013, c. 24, s. 107(F)

Marginal note:Disclosure

  •  (1) If a person, in connection with a proceeding or an appeal other than one referred to in paragraph 227.18(2)(a) or (b), discloses the fact that information relating to them is registered in the database, the Provost Marshal shall request that the Commissioner of the Royal Canadian Mounted Police disclose all of the information relating to the person that is registered in the database. The Commissioner or a person authorized by the Commissioner shall disclose the information to the Provost Marshal without delay.

  • Marginal note:Disclosure by Provost Marshal

    (2) The Provost Marshal shall disclose the information

    • (a) to the officer who has jurisdiction to try the person and to a person who provides legal advice to the officer with respect to the proceeding, in the case of a summary trial; or

    • (b) to the prosecutor or to the Minister or counsel instructed by the Minister in any other case.

  • Marginal note:Disclosure in proceedings

    (3) The officer who has jurisdiction to try the person may, if the officer is unable to preside over the summary trial, disclose the information to another officer who has jurisdiction to try the person and to a person who provides legal advice to that officer with respect to the summary trial.

  • Marginal note:Disclosure in proceedings

    (4) The officer who presides over the summary trial may disclose the information to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the summary trial, if the information is relevant to the review.

  • Marginal note:Disclosure in proceedings

    (5) The prosecutor or the Minister or counsel instructed by the Minister may disclose the information to the presiding judge, court or court martial in the proceeding or appeal or in any subsequent appeal, or to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the proceeding or appeal, if the information is relevant to the proceeding, appeal or review.

  • Marginal note:Disclosure in proceedings

    (6) A review authority may disclose the information to another review authority and to a person who provides legal advice to the other review authority with respect to a review by that review authority of a finding of guilty made or punishment imposed in a proceeding or appeal referred to in subsection (1) or in any subsequent appeal, if the information is relevant to the review.

  • 2007, c. 5, s. 4
  • 2010, c. 17, s. 57
  • 2013, c. 24, s. 107(F)

Authorizations, Designations and Regulations

Marginal note:Regulations by Governor in Council

 The Governor in Council may make regulations

  • (a) respecting the means by which designated classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve are required to report under section 4, 4.1 or 4.3, or to provide notification under section 6, of the Sex Offender Information Registration Act to registration centres designated under paragraph (e);

  • (b) designating classes of operations in respect of which a determination may be made under subsection 227.16(1);

  • (c) authorizing persons or classes of persons in or outside Canada to collect information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve;

  • (d) authorizing persons or classes of persons in or outside Canada to register information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve; and

  • (e) designating places or classes of places in or outside Canada as registration centres for the purposes of the Sex Offender Information Registration Act and the area, or classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve, served by each registration centre.

  • 2007, c. 5, s. 4

Marginal note:Authorization

 The Chief of the Defence Staff, the Provost Marshal, the Chief Military Judge or a commanding officer may authorize a person to communicate or disclose information, or give notice, under this Division on their behalf.

  • 2007, c. 5, s. 4
  • 2013, c. 24, s. 107(F)

DIVISION 9Appeals

General Provisions

Marginal note:Definition of legality and illegal

 For the purposes of this Division, the expressions legality and illegal shall be deemed to relate either to questions of law alone or to questions of mixed law and fact.

  • R.S., 1985, c. N-5, s. 228
  • 1998, c. 35, s. 92

 [Repealed, 1998, c. 35, s. 67]

Right to Appeal

Marginal note:Appeal by person tried

 Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

  • (a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

  • (a.1) the decision to make an order under subsection 745.51(1) of the Criminal Code;

  • (b) the legality of any finding of guilty;

  • (c) the legality of the whole or any part of the sentence;

  • (d) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

  • (e) the legality of a disposition made under section 201, 202 or 202.16;

  • (f) the legality of a decision made under any of subsections 196.14(1) to (3);

  • (g) the legality of a decision made under subsection 227.01(2);

  • (h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

  • (i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

  • (j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

  • (k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

  • R.S., 1985, c. N-5, s. 230
  • 1991, c. 43, s. 21
  • 2000, c. 10, s. 2
  • 2007, c. 5, s. 5, c. 22, s. 45
  • 2010, c. 17, s. 58
  • 2011, c. 5, s. 8
  • 2013, c. 24, s. 69

Marginal note:Appeal by Minister

 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

  • (a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

  • (a.1) the decision not to make an order under subsection 745.51(1) of the Criminal Code;

  • (b) the legality of any finding of not guilty;

  • (c) the legality of the whole or any part of the sentence;

  • (d) the legality of a decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge;

  • (e) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

  • (f) the legality of a disposition made under section 201, 202 or 202.16;

  • (f.1) the legality of an order for a stay of proceedings made under subsection 202.121(7);

  • (g) the legality of a decision made under any of subsections 196.14(1) to (3);

  • (h) the legality of a decision made under subsection 227.01(2);

  • (i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

  • (j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

  • (k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

  • (l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

  • 1991, c. 43, s. 21
  • 2000, c. 10, s. 3
  • 2005, c. 22, s. 59
  • 2007, c. 5, s. 6, c. 22, s. 46
  • 2010, c. 17, s. 59
  • 2011, c. 5, s. 9
  • 2013, c. 24, s. 70

Marginal note:Appeal from order

 Subject to subsection 232(3), a person who applied for an exemption order under section 227.1 or a termination order under section 227.03 or 227.12 and the Minister or counsel instructed by the Minister have the right to appeal to the Court Martial Appeal Court in respect of the legality of the decision made by the court martial.

  • 2007, c. 5, s. 7
 
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