An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (S.C. 2019, c. 15)
Full Document:
Assented to 2019-06-21
R.S., c. N-5National Defence Act (continued)
29 The Act is amended by adding the following after section 189:
Pleas
Marginal note:Pleas permitted
189.1 (1) An accused person who makes an application under subsection (2) or who, after the commencement of the trial, is called on to plead may plead guilty or not guilty, or any other plea authorized by regulations made by the Governor in Council.
Marginal note:Plea of guilty
(2) At any time after a court martial is convened but before the commencement of the trial, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Marginal note:Conditions for accepting guilty plea
(3) The military judge may accept a plea of guilty only if he or she is satisfied that
(a) the accused person is making the plea voluntarily; and
(b) the accused person
(i) understands that the plea is an admission of the essential elements of the service offence,
(ii) understands the nature and consequences of the plea, and
(iii) understands that the military judge is not bound by any agreement made between the accused person and the prosecutor.
Marginal note:Validity of plea
(4) The failure of the military judge to fully inquire whether the conditions set out in subsection (3) are met does not affect the validity of the plea.
Marginal note:Refusal to plead
(5) If an accused person refuses to plead or does not answer directly, he or she is deemed to have made a plea of not guilty.
Marginal note:Allowing time
(6) An accused person is not entitled as of right to have their trial postponed, but the military judge may, if the military judge considers that the accused person should be allowed further time to plead or prepare for their defence or for any other reason, adjourn the trial to a later time, on any terms that the military judge considers appropriate.
Marginal note:Included or other offence
(7) Despite any other provision of this Act, if an accused person pleads not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence, the military judge may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the military judge shall find the accused person not guilty of the offence charged and find him or her guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court martial.
Marginal note:Inquiry of court — serious personal injury offence
(8) If the accused person is charged with a service offence that is a serious personal injury offence and the accused person and the prosecutor have entered into an agreement under which the accused person will enter a plea of guilty of the service offence charged — or a plea of not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence — the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether reasonable steps were taken to inform the victims of the agreement.
Marginal note:Inquiry of court — certain offences
(9) If the accused person is charged with a serious offence that is not a serious personal injury offence and the accused person and the prosecutor have entered into an agreement referred to in subsection (8), the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Marginal note:Duty to inform
(10) If subsection (8) or (9) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Marginal note:Validity of plea
(11) Neither the failure of the military judge to inquire of the prosecutor as required under subsection (8) or (9) nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement affects the validity of the plea.
Marginal note:Definition of serious personal injury offence
(12) In this section, serious personal injury offence means
(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or
(b) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence.
Marginal note:2008, c. 29, s. 14
30 Section 191.1 of the Act is repealed.
Marginal note:2007, c. 22, s. 36
31 The portion of subsection 196.14(3) of the Act after paragraph (b) is replaced by the following:
In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that such an order would have on the person’s privacy and security and shall give reasons for the decision.
Marginal note:2002, c. 13, s. 88
32 Section 196.29 of the Act is replaced by the following:
Marginal note:Destruction of fingerprints, photographs, etc.
196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay, on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.
Marginal note:1998, c. 35, s. 51(3)
33 Paragraph 202.14(2)(f) of the Act is repealed.
Marginal note:1998, c. 35, s. 60
34 Section 215 of the Act is replaced by the following:
Marginal note:Court martial may suspend
215 (1) If an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the court martial that imposed the punishment.
Marginal note:Consideration of victim’s safety and security
(2) If the court martial makes a decision that the carrying into effect of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Marginal note:Copy to victim
(3) The court martial shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
Marginal note:1998, c. 35, s. 63; 2012, c. 1, subpar. 160(h)(ii)
35 Subsection 222(2) of the Act is replaced by the following:
Marginal note:Jurisdiction and discretion of Parole Board of Canada
(2) If the punishment of a service convict undergoing punishment in a penitentiary or of a service prisoner undergoing punishment in a civil prison is not suspended under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant, or revoke the parole of that convict or prisoner.
Marginal note:2007, c. 5, s. 4
36 (1) Paragraph 227.19(2)(a) of the Act is replaced by the following:
(a) to the officer conducting the summary hearing and to a person who provides legal advice to the officer with respect to the hearing, in the case of a summary hearing; or
Marginal note:2007, c. 5, s. 4
(2) Subsections 227.19(3) and (4) of the Act are replaced by the following:
Marginal note:Disclosure in proceedings
(4) The officer who conducted the summary hearing may disclose the information to a review authority, and to a person who provides legal advice to the review authority, with respect to a review of a finding that a person has committed a service infraction or of any sanction imposed by that officer, if the information is relevant to the review.
37 Section 230 of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (g) and by adding the following after paragraph (g):
(h) the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1).
38 Section 230.1 of the Act is amended by striking out “or” at the end of paragraph (g), by adding “or” after paragraph (h) and by adding the following after paragraph (h):
(i) the legality of a decision to make an order under subsection 180.05(1) or 180.07(1).
Marginal note:1991, c. 43, s. 28
39 Section 242 of the Act is replaced by the following:
Marginal note:Powers to suspend new punishment
242 If a punishment included in a sentence has been dealt with under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.
40 Section 248.3 of the Act is renumbered as subsection 248.3(1) and is amended by adding the following:
Marginal note:Consideration of victim’s safety and security
(2) If the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, directs that the person be released, the court martial, military judge or judge shall include in the direction a statement that the safety and security of every victim of the alleged offence has been considered.
Marginal note:Copy to victim
(3) The court martial, military judge or judge, as the case may be, shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
Marginal note:1998, c. 35, s. 82
41 Division 11 of Part III of the Act is replaced by the following:
DIVISION 11Petition for New Trial
Marginal note:Right to petition on new evidence
249 (1) Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.
Marginal note:Reference to CMAC for determination
(2) The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.
Marginal note:Reference to CMAC for opinion
(3) The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion, and that Court shall furnish its opinion accordingly.
Marginal note:New trial
(4) If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.
Marginal note:Royal prerogative
249.1 Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.
Marginal note:1998, c. 35, s. 82
42 Section 249.24 of the Act is replaced by the following:
Marginal note:Force and effect
249.24 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.
Marginal note:1998, c. 35, s. 82
43 The portion of section 251 of the Act before paragraph (b) is replaced by the following:
Marginal note:Oaths
251 At summary hearings and courts martial, and at proceedings before a military judge, board of inquiry or commissioner taking evidence under this Act, an oath must 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 conducting the summary hearing;
Marginal note:2013, c. 24, s. 104
44 Paragraph 302(d) of the Act is replaced by the following:
(d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a court martial, a military judge, an officer conducting a summary hearing, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or
45 The Act is amended by adding the following after section 302:
Marginal note:Publication prohibited
303 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under section 180.03;
(b) any evidence taken, information given or submissions made at a hearing under subsection 180.04(1) or 180.06(2);
(c) the determination of a military judge in respect of the making of an order under subsection 180.05(1) or 180.07(1) and the reasons provided under section 180.08, unless the military judge, after taking into account the interests of military justice and the right to privacy of the person to whom the record relates, orders that the determination and the reasons may be published, broadcast or transmitted.
Marginal note:Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
Marginal note:Definition of record
(3) In this section, record has the same meaning as in section 180.01.
Marginal note:Failure to comply — orders under sections 183.5 and 183.6
303.1 (1) Every person who fails to comply with an order made under section 183.5 or 183.6 is guilty of an offence punishable on summary conviction.
Marginal note:Application of order
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or military justice system participant whose identity is protected by the order.
Marginal note:Replacement of “service tribunal”
46 The Act is amended by replacing every reference to “service tribunal” with a reference to “court martial” in the following provisions:
(a) section 121;
(b) subsection 132(2);
(c) subsection 145(2);
(d) section 149;
(e) paragraph 202.14(2)(c);
(f) subsection 204(1);
(g) subsection 226(2); and
(h) subsections 249.25(1), (2) and (4).
Page Details
- Date modified: