Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

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

Full Document:  

Act current to 2022-09-22 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 7.1Sentencing (continued)

Purpose and Principles of Sentencing by Courts Martial (continued)

Marginal note:Abuse of persons under age of 18

 When a court martial imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Facts Relevant to the Determination of a Sentence

Marginal note:Disputed facts

  •  (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

    • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

    • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

    • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

  • Marginal note:Panel

    (2) In the case of a General Court Martial, the court martial

    • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

    • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

  • 2013, c. 24, s. 62

Victim Impact Statement

Marginal note:Duty to consider victim impact statement

  •  (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, 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:Filing of statement

    (2) The victim’s statement must be filed in accordance with regulations made by the Governor in Council.

  • Marginal note:Presentation of statement

    (3) 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 present the statement by

    • (a) reading it;

    • (b) reading it in the presence and close proximity of any support person of the victim’s choice;

    • (c) subject to subsection 203.7(4), reading it outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or

    • (d) presenting it in any other manner that the court martial considers appropriate.

  • Marginal note:Evidence concerning victim admissible

    (4) Whether or not a statement has been prepared and filed in accordance with this section, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or determining whether the offender should be discharged absolutely.

Marginal note:Inquiry by court martial

  •  (1) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 203.6(1).

  • Marginal note:Adjournment

    (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

  • Marginal note:Photograph

    (3) During the presentation

    • (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings; or

    • (b) if the statement is presented by an individual acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings.

  • Marginal note:Conditions of exclusion

    (4) The victim shall not present the statement outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

  • Marginal note:Consideration of statement

    (5) In considering the statement, the court martial shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection 203.6(1) and disregard any other portion.

Military Impact Statement

Marginal note:Military impact statement

  •  (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made on the behalf of the Canadian Forces describing the harm done to discipline, efficiency or morale as a result of the commission of the offence and the impact of the offence on discipline, efficiency or morale.

  • Marginal note:Filing of statement

    (2) The statement must be prepared by an officer or non-commissioned member who is authorized to do so by regulations made by the Governor in Council and it must be filed in accordance with regulations made by the Governor in Council.

  • Marginal note:Presentation of statement

    (3) The court martial shall, at the request of the person who made the statement, permit the person to present the statement by reading it or by presenting it in any other manner that the court martial considers appropriate.

  • Marginal note:Copy of statement

    (4) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.

Community Impact Statement

Marginal note:Community impact statement

  •  (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made by an individual on a community’s behalf, describing the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.

  • Marginal note:Filing of statement

    (2) The statement must be filed in accordance with regulations made by the Governor in Council.

  • Marginal note:Presentation of statement

    (3) The court martial shall, at the request of the individual who made the statement, permit the individual to present the statement by

    • (a) reading it;

    • (b) reading it in the presence and close proximity of any support person of the individual’s choice;

    • (c) subject to subsection (4), reading it outside the courtroom or behind a screen or other device that would allow the individual not to see the offender; or

    • (d) presenting it in any other manner that the court martial considers appropriate.

  • Marginal note:Conditions of exclusion

    (4) The individual making the statement shall not present it outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

  • Marginal note:Copy of statement

    (5) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.

Absolute Discharge

Marginal note:Absolute discharge

  •  (1) If an accused person pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court martial before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

  • Marginal note:Effect of discharge

    (2) If a court martial directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

    • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

    • (b) the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

    • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

  • Marginal note:References to section 730 of Criminal Code

    (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

Restitution

Marginal note:Court martial to consider restitution order

  •  (1) A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely shall consider making a restitution order under section 203.9.

  • Marginal note:Inquiry by court martial

    (2) As soon as feasible after a finding of guilt and in any event before imposing the sentence or directing that the offender be discharged absolutely, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

  • Marginal note:Adjournment

    (3) On application of the prosecutor or on its own motion, the court martial may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

  • Marginal note:Form

    (4) Victims and other persons may indicate whether they are seeking restitution by completing a form prescribed in regulations made by the Governor in Council and by filing it in accordance with the procedures provided for in regulations made by the Governor in Council, and, if they are seeking restitution, shall establish, in the same manner, their losses and damages, the amount of which must be readily ascertainable.

  • Marginal note:Reasons

    (5) If a victim seeks restitution and the court martial does not make a restitution order, it shall include in the court record a statement of its reasons for not doing so.

Marginal note:Restitution order

 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

  • (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

  • (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

  • (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

  • 2013, c. 24, s. 62

Marginal note:Ability to pay

 The offender’s financial means or ability to pay does not prevent the court martial from making an order under section 203.9.

Marginal note:Payment under order

 In making an order under section 203.9, the court martial shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court martial is of the opinion that the amount should be paid in instalments, in which case the court martial shall set out a periodic payment scheme in the order.

Marginal note:More than one person

 An order under section 203.9 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.

Marginal note:Enforcing restitution order

  •  (1) An offender who fails to pay an amount that is ordered to be paid in a restitution order by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order, and the person who was to be paid the amount or to whom the periodic payment was to be made, as the case may be, may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

  • Marginal note:Moneys found on offender

    (2) All or any part of an amount that is ordered to be paid in a restitution order may be taken out of moneys found in the possession of the offender at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.

 
Date modified: