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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 IVComplaints About or by Military Police (continued)

DIVISION 3Investigations and Hearings by Complaints Commission (continued)

Marginal note:Report on investigation

 On completion of an investigation under subsection 250.38(1), the Chairperson shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint, unless the Chairperson has caused, or intends to cause, a hearing to be held to inquire into the complaint.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 107(F)

Marginal note:Assignment of members to conduct hearing

  •  (1) If the Chairperson decides to cause a hearing to be held, the Chairperson shall

    • (a) assign one or more members of the Complaints Commission to conduct the hearing; and

    • (b) send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

  • Marginal note:Deeming

    (2) For the purposes of this Part, the member or members of the Complaints Commission who conduct a hearing are deemed to be the Complaints Commission.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 91(F)

Marginal note:Powers

  •  (1) When conducting a hearing, the Complaints Commission has, in relation to the complaint before it, power

    • (a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

    • (b) to administer oaths; and

    • (c) to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

  • Marginal note:Restriction

    (2) Notwithstanding subsection (1), the Complaints Commission may not receive or accept

    • (a) any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;

    • (b) any answer given or statement made before a board of inquiry or summary investigation;

    • (c) any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;

    • (d) any answer given or statement made before a court of law or tribunal; or

    • (e) any answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).

  • 1998, c. 35, s. 82

Marginal note:Hearing in public

 A hearing is to be held in public, except that the Complaints Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed:

  • (a) information that, if disclosed, could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;

  • (b) information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement; and

  • (c) information affecting a person’s privacy or security interest, if that interest outweighs the public’s interest in the information.

  • 1998, c. 35, s. 82
  • 2015, c. 3, s. 134(F)

Marginal note:Notice of hearing

  •  (1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve a notice in writing of the time and place appointed for the hearing on the complainant and the person who is the subject of the complaint.

  • Marginal note:Convenience to be considered

    (2) If a person on whom a notice is served wishes to appear before the Complaints Commission, the Complaints Commission must consider the convenience of that person in fixing the time and the place for the hearing.

  • Marginal note:Delay of hearing

    (3) If the complaint relates to conduct that is also the subject of disciplinary or criminal proceedings before a court or tribunal of first instance, the hearing may not take place until the disciplinary or criminal proceedings are completed.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 92(F)

Marginal note:Rights of persons interested

 The Complaints Commission shall afford a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing to

  • (a) the complainant and the person who is the subject of the complaint, if they wish to appear; and

  • (b) any other person who satisfies the Complaints Commission that the person has a substantial and direct interest in the hearing.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 93(F)

Marginal note:Witness not excused from testifying

  •  (1) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Complaints Commission when required to do so by the Complaints Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

  • Marginal note:Answer not receivable

    (2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

  • 1998, c. 35, s. 82

Marginal note:Expenses

 Travel and living expenses incurred in appearing before the Complaints Commission shall, in the discretion of the Complaints Commission, be paid in accordance with applicable Treasury Board directives, to the complainant and to the person who is the subject of the complaint, and to their counsel, if the Complaints Commission holds a hearing at a place in Canada that is not their ordinary place of residence.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 108(F)

Marginal note:Return of documents, etc.

 Documents and things presented to the Complaints Commission at a hearing shall, on request, be returned to the person who presented them within a reasonable time after completion of the Complaints Commission’s report on the complaint.

  • 1998, c. 35, s. 82

Marginal note:Report

 On completion of a hearing, the Complaints Commission shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out its findings and recommendations with respect to the complaint.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 107(F)

DIVISION 4Review and Final Report

Marginal note:Review — conduct complaint

  •  (1) On receipt of a report under subsection 250.32(3) or section 250.39 or 250.48 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report.

  • Marginal note:Exception

    (2) If the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.

  • 1998, c. 35, s. 82
  • 2013, c. 24, ss. 94(F), 107(F)

Marginal note:Review — interference complaint

  •  (1) On receipt of a report under section 250.36, 250.39 or 250.48 in respect of an interference complaint, the complaint shall be reviewed in light of the findings and recommendations set out in the report by

    • (a) the Chief of the Defence Staff, if the person who is the subject of the complaint is an officer or a non-commissioned member; and

    • (b) the Deputy Minister, if the person who is the subject of the complaint is a senior official of the Department.

  • Marginal note:Exception

    (2) If the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, the review shall be conducted by the Minister.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 95(F)

Marginal note:Notice of action

  •  (1) The person who reviews a report under section 250.49 or 250.5 shall notify in writing the Minister and the Chairperson of any action that has been or will be taken with respect to the complaint.

  • Marginal note:Reasons

    (2) If the person decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.

  • 1998, c. 35, s. 82

Marginal note:Notice of action

  •  (1) If the Minister reviews a report by reason of subsection 250.5(2), the Minister shall notify the Chairperson in writing of any action that has been or will be taken with respect to the complaint.

  • Marginal note:Reasons

    (2) If the Minister decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.

  • 1998, c. 35, s. 82

Marginal note:Final report by Chairperson

  •  (1) After receiving and considering a notice sent under section 250.51 or 250.52, the Chairperson shall prepare a final report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint.

  • Marginal note:Recipients of report

    (2) A copy of the final report shall be sent to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal, the complainant, the person who is the subject of the complaint and all persons who have satisfied the Complaints Commission that they have a substantial and direct interest in the complaint.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 96(F)

PART VMiscellaneous Provisions Having General Application

Oaths

Marginal note:Oaths

 At summary trials and courts martial, and at proceedings before a board of inquiry or a commissioner taking evidence under this Act, an oath shall be taken by or administered to the following persons in the manner and in the forms prescribed in regulations made by the Governor in Council:

  • (a) the officer presiding at the summary trial;

  • (b) the judge presiding at the court martial;

  • (c) each member of the panel of the court martial;

  • (d) each member of the board of inquiry;

  • (e) the commissioner;

  • (f) court reporters;

  • (g) interpreters; and

  • (h) subject to section 16 of the Canada Evidence Act, witnesses.

  • R.S., 1985, c. N-5, s. 251
  • 1998, c. 35, s. 82

Marginal note:Solemn affirmation instead of oath

  •  (1) A person who is required to take an oath under this Act may, instead of taking an oath, make a solemn affirmation.

  • Marginal note:Effect

    (2) A solemn affirmation has the same force and effect as an oath.

  • Marginal note:Prosecutions under the Criminal Code

    (3) An oath or a solemn affirmation under this Act has, in respect of any prosecution under the Criminal Code, the same force and effect as an oath taken before a civil court.

  • 1998, c. 35, s. 82

Witness Fees and Allowances

Marginal note:Witness fees and allowances

 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

  • 1998, c. 35, s. 82
  • 2013, c. 24, ss. 97, 106(E)

Disposal by Civil Authorities of Deserters and Absentees without Leave

Marginal note:Definition of justice

  •  (1) For the purposes of this section and sections 253 and 254, justice means a justice as defined in the Criminal Code.

  • Marginal note:Powers of arrest on reasonable grounds

    (2) Any peace officer who on reasonable grounds believes or, if no peace officer is immediately available, any officer or non-commissioned member who believes on reasonable grounds that a person is a deserter or an absentee without leave may apprehend that person and forthwith bring the person before a justice.

  • Marginal note:Issue of warrant

    (3) A justice, if satisfied by evidence on oath that a deserter or an absentee without leave is, or is believed on reasonable grounds to be, within the jurisdiction of that justice, may issue a warrant authorizing the deserter or absentee without leave to be apprehended and brought forthwith before that or any other justice.

  • Marginal note:Justice’s power to examine into case

    (4) Where a person is brought before a justice charged with being a deserter or absentee without leave under this Act, the justice may examine into the case in like manner as if that person were brought before the justice accused of an indictable offence.

  • R.S., 1985, c. N-5, s. 252
  • R.S., 1985, c. 31 (1st Supp.), s. 58

Marginal note:Disposal of person brought before justice

  •  (1) A justice, if satisfied either by evidence on oath or by the admission of a person brought before the justice under section 252 that the person is a deserter or absentee without leave, shall cause him to be delivered into service custody in such manner as the justice may deem most expedient and, until the person can be so delivered, the justice may cause the person to be held in civil custody for such time as appears to the justice reasonably necessary for the purpose of delivering the person into service custody.

  • Marginal note:Verification of admission

    (2) Where a person has admitted to being a deserter or absentee without leave and evidence of the truth or falsehood of the admission is not then forthcoming, the justice before whom the person is brought shall remand him for the purpose of obtaining information respecting the truth or falsehood of the admission and, for that purpose, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.

  • Marginal note:Remands

    (3) A justice before whom a person is brought under section 252 may from time to time remand him for a period not exceeding eight days on each appearance before the justice, but the whole period during which a person is so remanded shall not be longer than appears to the justice reasonably necessary for the purpose of obtaining the information referred to in subsection (2).

  • Marginal note:Report following disposal

    (4) Where a justice before whom a person is brought under section 252 causes him to be delivered into service custody or to be held in civil custody, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.

  • R.S., c. N-4, s. 214
 
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