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

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Act current to 2019-08-28 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 7Mental Disorder (continued)

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports (continued)

Marginal note:Procedure at disposition hearing

  •  (1) A hearing by a court martial under subsection 200(2) or 202.15(1) to make or review a disposition in respect of an accused person shall be held in accordance with this section.

  • 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

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

  • Marginal note:Notice

    (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:Order excluding public

    (6) 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

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

  • Marginal note:Assigning counsel

    (8) 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

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

  • Marginal note:Removal or absence of accused person

    (10) 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

    (11) 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

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

  • Marginal note:Video links

    (13) 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

    (14) 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 subsection 201(1) or 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

    (15) 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 harm done to, or loss suffered by, the victim arising from the commission of the offence.

  • Marginal note:Procedure

    (16) 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

    (17) 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

    (18) 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

    (19) 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

    (20) 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

    (21) 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 (18) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

  • Marginal note:Definition of victim

    (22) In this section, victim has the same meaning as in section 203.

  • 2013, c. 24, s. 59

Marginal note:Status quo pending Review Board’s hearing

  •  (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.

  • 1991, c. 43, s. 18
  • 2005, c. 22, s. 54

Marginal note:Procedural irregularities

  •  (1) Any procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby.

  • Marginal note:Reasons for disposition and copies to be provided

    (2) After making a disposition in respect of an accused person under section 201, 202 or 202.16, a court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons.

  • Marginal note:Transmittal of transcript to Review Board

    (3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

  • Marginal note:Transmittal of transcript to Review Board

    (3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

  • Marginal note:Order of committal

    (4) Where a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation.

  • 1991, c. 43, s. 18
  • 2005, c. 22, ss. 55, 61(F)
 
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