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

Full Document:  

Act current to 2022-07-25 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 12Miscellaneous Provisions (continued)

Defence Counsel Services (continued)

Marginal note:Duties and functions

 The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.

  • 1998, c. 35, s. 82

Marginal note:Relationship to Judge Advocate General

  •  (1) The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.

  • Marginal note:General instructions

    (2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services.

  • Marginal note:Instructions must be public

    (3) The Director of Defence Counsel Services shall ensure that the general instructions and guidelines are available to the public.

  • 1998, c. 35, s. 82

Marginal note:Barristers and advocates to assist

  •  (1) The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.

  • Marginal note:Counsel

    (2) The Director of Defence Counsel Services may engage on a temporary basis the services of counsel to assist the Director of Defence Counsel Services.

  • Marginal note:Remuneration

    (3) The Director of Defence Counsel Services may, subject to any applicable Treasury Board directives, establish the terms and conditions of engagement and fix the remuneration and expenses of counsel engaged under subsection (2).

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 72(F)

Witnesses at Courts Martial and before Commissioners

Marginal note:Summonses to witnesses

  •  (1) Every person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.

  • Marginal note:Summonses to witnesses

    (2) Every person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.

  • Marginal note:Production of documents

    (3) A person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue.

  • 1998, c. 35, s. 82

Warrant for Arrest on Non-Appearance of Accused

Marginal note:Non-appearance of accused

 Where an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused person

  • (a) fails to appear as summoned or ordered; or

  • (b) having appeared before the court martial, fails to attend before the court martial as required.

  • 1998, c. 35, s. 82

Effect of New Punishment

Marginal note:Force and effect

 If a new punishment is substituted for a punishment imposed by a court martial, the new punishment has force and effect as if it had been imposed by the court martial in the first instance and the provisions of the Code of Service Discipline apply accordingly. However, if the new punishment involves incarceration, the term of the new punishment is to be reckoned from the date of substitution.

Restitution of Property

Marginal note:Restitution of property

  •  (1) A court martial that finds a person guilty of an offence shall order that any property obtained by the commission of the offence be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

  • Marginal note:Restitution where no conviction, but offence committed

    (2) Where an accused person is tried for an offence but is not convicted and it appears to the court martial that an offence has been committed, the court martial may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

  • Marginal note:Exceptions

    (3) An order shall not be made in respect of

    • (a) property to which an innocent purchaser for value has acquired lawful title;

    • (b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or

    • (c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.

  • Marginal note:Execution of order for restitution

    (4) An order made under this section shall be executed by the persons by whom the process of the court martial is ordinarily executed.

Reference to Ranks

Marginal note:Reference to ranks

 Every reference in this Part to the rank of an officer or non-commissioned member includes a person who holds any equivalent relative rank, whether that person is attached, seconded or on loan to the Canadian Forces.

  • 1998, c. 35, s. 82

Criminal Record

Marginal note:Convictions for certain offences

  •  (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

    • (a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:

      • (i) a severe reprimand,

      • (ii) a reprimand,

      • (iii) a fine not exceeding basic pay for one month, or

      • (iv) a minor punishment;

    • (b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

  • Marginal note:Criminal Records Act

    (2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

PART IVComplaints About or by Military Police

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Part.

Chairperson

Chairperson means the Chairperson of the Complaints Commission. (président)

Complaints Commission

Complaints Commission means the Military Police Complaints Commission established by subsection 250.1(1). (Commission)

conduct complaint

conduct complaint means a complaint about the conduct of a member of the military police made under subsection 250.18(1). (plainte pour inconduite)

interference complaint

interference complaint means a complaint about interference with a military police investigation made under subsection 250.19(1). (plainte pour ingérence)

military police

military police[Repealed, 2013, c. 24, s. 76]

Provost Marshal

Provost Marshal[Repealed, 2007, c. 5, s. 10]

  • R.S., 1985, c. N-5, s. 250
  • 1998, c. 35, s. 82
  • 2007, c. 5, s. 10
  • 2013, c. 24, s. 76

DIVISION 1Military Police Complaints Commission

Establishment and Organization

Marginal note:Commission established

  •  (1) There is established a commission, called the Military Police Complaints Commission, consisting of a Chairperson and not more than four other members to be appointed by the Governor in Council.

  • Marginal note:Full- or part-time

    (2) Each member holds office as a full-time or a part-time member.

  • Marginal note:Tenure of office and removal

    (3) Each member holds office during good behaviour for a term not exceeding five years but may be removed by the Governor in Council for cause.

  • Marginal note:Re-appointment

    (4) A member is eligible to be re-appointed on the expiration of a first or subsequent term of office.

  • Marginal note:Duties of full-time members

    (5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

  • Marginal note:Conflict of interest — part-time members

    (6) Part-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.

  • Marginal note:Eligibility

    (7) An officer, a non-commissioned member or an employee of the Department is not eligible to be a member of the Complaints Commission.

  • Marginal note:Remuneration

    (8) The members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.

  • Marginal note:Travel and living expenses

    (9) The members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.

  • Marginal note:Status of members

    (10) The members are deemed

  • Marginal note:Oath of office

    (11) Every member shall, before commencing the duties of office, take the following oath of office:

    I, blank line, do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Police Complaints Commission in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Police Complaints Commission, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

  • 1998, c. 35, s. 82
  • 2003, c. 22, ss. 224(E), 225(E)
  • 2010, c. 12, s. 1755
  • 2013, c. 24, s. 77(F)

Chairperson

Marginal note:Chief executive officer

  •  (1) The Chairperson is the chief executive officer of the Complaints Commission and has supervision over and direction of its work and staff.

  • Marginal note:Absence or incapacity

    (2) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Minister may authorize any member of the Complaints Commission to exercise the powers and perform the duties and functions of the Chairperson.

  • Marginal note:Delegation

    (3) The Chairperson may delegate to a member of the Complaints Commission any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 250.17(1).

  • 1998, c. 35, s. 82

Head Office

Marginal note:Head Office

 The head office of the Complaints Commission shall be at the place in Canada designated by the Governor in Council.

  • 1998, c. 35, s. 82

Staff

Marginal note:Staff

  •  (1) The employees that are necessary for the proper conduct of the work of the Complaints Commission shall be appointed in accordance with the Public Service Employment Act.

  • Marginal note:Experts

    (2) The Complaints Commission may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Complaints Commission in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.

  • 1998, c. 35, s. 82

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

 The Complaints Commission shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

  • 1998, c. 35, s. 82

Rules

Marginal note:Rules

 The Chairperson may make rules respecting

  • (a) the manner of dealing with matters and business before the Complaints Commission, including the conduct of investigations and hearings by the Complaints Commission;

  • (b) the apportionment of the work of the Complaints Commission among its members and the assignment of members to review complaints; and

  • (c) the performance of the duties and functions of the Complaints Commission.

  • 1998, c. 35, s. 82

Immunity

Marginal note:Protection of members

 No criminal or civil proceedings lie against any member of the Complaints Commission, or against any person acting on behalf of the Complaints Commission, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Complaints Commission.

  • 1998, c. 35, s. 82
 
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