REVIEW

Marginal note:Review

• 31.1 (1) Within five years after sections 21 to 31 come into force, a comprehensive review of the operation of sections 197 to 233 of the National Defence Act is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose.

• Marginal note:Report

  (2) Within a year, or such further time as authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the review is undertaken, the Committee referred to in subsection (1) must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, including a statement of any changes recommended by the Committee.

COORDINATING AMENDMENTS

Marginal note:Bill C-15

• 32. (1) Subsections (2) to (5) apply if Bill C-15, introduced in the 1st session of the 41st Parliament and entitled the Strengthening Military Justice in the Defence of Canada Act (in this section referred to as the “other Act”), receives royal assent.

• (2) If section 59 of the other Act comes into force before section 26 of this Act, then, on the day on which that section 59 comes into force, that section 26 is replaced by the following:

  26. Section 202.201 of the Act is replaced by the following:

  Marginal note:Procedure at disposition hearing

  • 202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

  • 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 — parties

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

  • Marginal note:Notice of hearing — victim

    (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:Notice of release from custody and intended place of residence

    (6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release and the accused person’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.

  • Marginal note:Order excluding public

    (7) 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

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

  • Marginal note:Assigning counsel

    (9) 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

    (10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

  • Marginal note:Removal or absence of accused person

    (11) 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

    (12) 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

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

  • Marginal note:Video links

    (14) 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

    (15) 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 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

    (16) 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

    (17) 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

    (18) 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

    (19) 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

    (20) 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

    (21) 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

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

  • Definition of “victim”

    (23) In this section, “victim” has the same meaning as in section 203.

  Marginal note:Additional conditions — safety and security

  202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

  • (a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

  • (b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

• (3) If section 26 of this Act comes into force before section 59 of the other Act, then, on the day on which that section 26 comes into force, that section 59 is replaced by the following:

  59. Subsection 202.201(23) of the Act is replaced by the following:

  • Definition of “victim”

    (23) In this section, “victim” has the same meaning as in section 203.

• (4) If section 59 of the other Act comes into force on the same day as section 26 of this Act, then that section 26 is deemed to have come into force before that section 59 and subsection (3) applies as a consequence.

• (5) On the first day on which both section 61 of the other Act and section 28 of this Act are in force, subsection 202.25(1) of the National Defence Act is replaced by the following:

  Marginal note:Powers of Review Board

  • 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

  • Marginal note:References to Attorney General

    (1.1) For the purpose of subsection (1), a reference to the Attorney General of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code and a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of that Act shall be read as a reference to the Director of Military Prosecutions.