Bill C-7
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C-7
First Session, Thirty-ninth Parliament,
55 Elizabeth II, 2006
HOUSE OF COMMONS OF CANADA
BILL C-7
An Act to amend the National Defence Act
first reading, April 27, 2006
THE MINISTER OF NATIONAL DEFENCE
90355
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the National Defence Act”.
SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution; and
(e) require certain decisions of a court martial panel to be unanimous.
This enactment also sets out the duties and functions of the Canadian Forces Provost Marshal and clarifies the responsibilities of the Provost Marshal and the Military Police Complaints Commission.
This enactment also makes amendments in respect of the delegation of the powers of the Chief of the Defence Staff as the final authority in the grievance process and makes consequential amendments to other Acts.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
1st Session, 39th Parliament,
55 Elizabeth II, 2006
house of commons of canada
BILL C-7
An Act to amend the National Defence Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. N-5
NATIONAL DEFENCE ACT
1998, c. 35, s. 1(4)
1. (1) The definition “military judge” in subsection 2(1) of the National Defence Act is replaced by the following:
“military judge”
« juge militaire »
« juge militaire »
“military judge” includes a reserve force military judge;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“military police”
« police militaire »
« police militaire »
“military police” means the officers and non-commissioned members appointed under regulations for the purposes of section 156;
1998, c. 35, s. 4
2. (1) Paragraph 12(3)(a) of the Act is replaced by the following:
(a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;
(2) Section 12 of the Act is amended by adding the following after subsection (3):
Retroactive effect
(4) Regulations made under paragraph (3)(a) may, if they so provide, be retroactive and have effect with respect to any period before they are made. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect with respect to the period before the date of the commencement of the review conducted by the Military Judges Compensation Committee that led to the making of the regulations.
3. The Act is amended by adding the following after section 18.2:
Canadian Forces Provost Marshal
Appointment
18.3 (1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).
Rank
(2) The Provost Marshal holds a rank that is not less than colonel.
Tenure of office and removal
(3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.
Powers of inquiry committee
(4) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
Re-appointment
(5) The Provost Marshal is eligible to be re-appointed on the expiry of a first or subsequent term of office.
Duties and functions
18.4 The responsibilities of the Provost Marshal include
(a) investigations assigned to any unit or other element under his or her command;
(b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;
(c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and
(d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.
General supervision
18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).
General instructions or guidelines
(2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.
Specific instructions or guidelines
(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.
Availability to public
(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.
Exception
(5) Subsection (4) does not apply in respect of an instruction or guideline, or a part of an instruction or guideline, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.
Annual report
18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.
4. Section 29 of the Act is amended by adding the following after subsection (2):
Military judges
(2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.
1998, c. 35, s. 7
5. Section 29.11 of the Act is replaced by the following:
Grievances submitted by military judges
29.101 Despite subsection 29.1(1), a grievance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.
Final authority
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
1998, c. 35, s. 7
6. (1) Subsection 29.12(1) of the Act is replaced by the following:
Referral to Grievance Board
29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.
1998, c. 35, s. 7
(2) Paragraph 29.12(2)(b) of the English version of the Act is replaced by the following:
(b) any decision made by an authority in respect of the grievance; and
1998, c. 35, s. 7
7. Subsection 29.13(2) of the Act is replaced by the following:
Reasons
(2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if
(a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievance Board; or
(b) the grievance was submitted by a military judge.
1998, c. 35, s. 7
8. Section 29.14 of the Act is replaced by the following:
Delegation
29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that
(a) a grievance submitted by an officer may only be delegated to an officer of equal or higher rank; and
(b) a grievance submitted by a military judge may not be delegated.
Conflict of interest
(2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.
Subdelegation
(3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).
9. (1) Section 29.16 of the Act is amended by adding the following after subsection (4):
Completion of duties
(4.1) A person who ceases to hold office as a member for any reason other than their removal may, at the request of the Chairperson and for a period not exceeding six months that is authorized by the Chairperson, continue to participate in the review of any grievance that the person began to review before ceasing to hold office. During that period, the person is deemed to be a part-time member.
1998, c. 35, s. 7
(2) Subsection 29.16(11) of the French version of the Act is replaced by the following:
Serment
(11) Avant d’entrer en fonctions, les membres prêtent le serment suivant :
Moi, .........., je jure (ou j’affirme) solennellement que j’exercerai fidèlement et honnêtement les devoirs qui m’incombent en ma qualité de membre du Comité des griefs des Forces canadiennes en conformité avec les prescriptions de la Loi sur la défense nationale applicables à celui-ci, ainsi que toutes règles et instructions établies sous son régime, et que je ne révélerai ni ne ferai connaître, sans y avoir été dûment autorisé(e), rien de ce qui parviendra à ma connaissance en raison de mes fonctions. (Dans le cas du serment, ajouter : Ainsi Dieu me soit en aide.)
1998, c. 35, s. 7
10. Subsection 29.28(1) of the Act is replaced by the following:
Annual report
29.28 (1) The Chairperson shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Grievance Board during that year and its recommendations, if any.
R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)
11. Subsection 30(4) of the Act is replaced by the following:
Reinstatement
(4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.
Deeming provision
(5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.
1998, c. 35, s. 10
12. Subsection 35(1) of the Act is replaced by the following:
Rates and conditions of pay
35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than those mentioned in paragraph 12(3)(a), shall be established by the Treasury Board.
1998, c. 35, s. 20
13. Paragraph 66(1)(b) of the Act is replaced by the following:
(b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.
14. The Act is amended by adding the following after section 72:
Civil Defences
Rules and principles of civil courts applicable
72.1 All rules and principles from time to time followed in the civil courts that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.
Ignorance of the Law
Ignorance not to constitute excuse
72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.
1998, c. 35, s. 29
15. Section 101.1 of the Act is replaced by the following:
Failure to comply with conditions
101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8.1, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
1998, c. 35, s. 32
16. Subsection 118(1) of the Act is replaced by the following:
Definition of “tribunal”
118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to a service tribunal, the Grievance Board, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.
1992, c. 16, s. 1
17. Section 137 of the English version of the Act is replaced by the following:
Offence charged, attempt proved
137. (1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.
Attempt charged, full offence proved
(2) If, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be found guilty of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.
Conviction a bar
(3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he or she was charged with attempting to commit.
1998, c. 35, s. 36; 2001, c. 32, s. 68(F), c. 41, s. 98
18. Sections 140.3 and 140.4 of the Act are repealed.
1998, c. 35, s. 38
19. Subsection 142(2) of the Act is replaced by the following:
Reduction in rank during detention
(2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.
20. The Act is amended by adding the following after section 145:
Civil enforcement of fines
145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.
1995, c. 39, s. 176; 1996, c. 19, s. 83.1
21. (1) Subsection 147.1(1) of the Act is replaced by the following:
Prohibition order
147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of
(a) an offence in the commission of which violence against a person was used, threatened or attempted;
(b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance;
(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act; or
(d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.
1995, c. 39, s. 176
(2) Subsection 147.1(3) of the Act is replaced by the following:
Application of order
(3) Unless the order specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the performance of their duties.
1995, c. 39, s. 176
22. Section 147.2 of the Act is replaced by the following:
Requirement to surrender
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer
(a) any thing the possession of which is prohibited by the order that is in the possession of the offender on the commencement of the order; and
(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the offender on the commencement of the order.
The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.
1998, c. 35, s. 93
23. Section 148 of the Act and the heading before it are replaced by the following:
Intermittent Sentences
Imprisonment or detention
148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at the times specified in the order; and
(b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.
Application to vary intermittent sentence
(2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying
(a) to the offender’s commanding officer, in the case of a sentence imposed by summary trial; or
(b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.
New sentence of imprisonment or detention
(3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.
Hearing into breach of conditions
(4) On application by a representative of the Canadian Forces, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or
(b) a military judge, in the case of a condition imposed by a court martial.
Consequences of breach
(5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may
(a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or
(b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as he or she sees fit.
R.S., c. 31 (1st Supp.), s. 47; 1998, c. 35, s. 93
24. The heading before section 150 and sections 150 and 151 of the Act are repealed.
1998, c. 35, s. 40
25. Paragraph (d) of the definition “infraction désignée” in section 153 of the French version of the Act is replaced by the following:
d) toute infraction d’organisation criminelle punissable aux termes de la présente loi;
26. Section 155 of the Act is amended by adding the following after subsection (2):
Limitations on power of arrest
(2.1) An officer or non-commissioned member shall not order the arrest of a person without a warrant or, unless ordered by a superior officer, arrest a person without a warrant if
(a) the alleged offence is not a serious offence;
(b) he or she believes on reasonable grounds that the public interest, having regard to all the circumstances — including the need to establish the identity of the person, to secure or preserve evidence of or relating to the offence or to prevent the continuation or repetition of the offence or the commission of another offence — may be satisfied without arresting the person; and
(c) he or she has no reasonable grounds to believe that, if the person is not arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.
27. Section 156 of the Act is renumbered as subsection 156(1) and is amended by adding the following:
Arrest without warrant: limitations
(2) A member of the military police shall not arrest a person without a warrant if paragraphs 155(2.1)(a) to (c) apply.
1998, c. 35, s. 42
28. Subsection 158(3) of the Act is replaced by the following:
Duty to receive into service custody
(3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to his or her custody.
1998, c. 35, s. 42
29. Subsection 158.6(2) of the French version of the Act is replaced by the following:
Révision
(2) L’ordonnance de libération, inconditionnelle ou sous condition, rendue par l’officier réviseur peut être révisée par le commandant qui a désigné celui-ci ou, lorsqu’il est lui-même commandant, par l’officier immédiatement supérieur devant lequel il est responsable en matière de discipline.
30. The Act is amended by adding the following before section 159:
Review of directions
158.7 (1) A military judge may, on application by counsel for the Canadian Forces or a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):
(a) a direction that was reviewed under subsection 158.6(2);
(b) a direction that was made under subsection 158.6(3); and
(c) a direction that was made under this section.
Conditions
(2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.
Further applications
(3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.
1998, c. 35, s. 42
31. Paragraphs 159.2(b) and (c) of the Act are replaced by the following:
(b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of military justice; and
(c) custody is necessary to maintain public trust in the administration of military justice, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
32. The Act is amended by adding the following after section 159.9:
Direction Cancelled
Regulations
159.91 A direction to retain a person in custody or impose conditions on the release of a person is cancelled in the circumstances prescribed in regulations made by the Governor in Council.
1998, c. 35, s. 42
33. Section 161 of the Act is renumbered as subsection 161(1) and is amended by adding the following:
Duty to act expeditiously
(2) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.
1998, c. 35, s. 42
34. (1) Paragraph 164(1)(a) of the Act is replaced by the following:
(a) the accused person is an officer below the rank of colonel or a non-commissioned member above the rank of sergeant;
(2) Section 164 of the Act is amended by adding the following after subsection (1):
Exception
(1.1) Despite paragraph (1)(a), a superior commander may not try a military judge by summary trial and may only try an officer of the rank of lieutenant-colonel by summary trial if the superior commander is of or above the rank of colonel.
1998, c. 35, s. 42
(3) Subsection 164(3) of the Act is repealed.
(4) Section 164 of the Act is amended by adding the following after subsection (4):
Officer cadets
(5) A superior commander who passes sentence on an officer cadet may include, in addition to the punishments described in subsection (4), minor punishments.
1998, c. 35, s. 42
35. Subsection 165(2) of the English version of the Act is replaced by the following:
Meaning of “prefer”
(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator.
1998, c. 35, s. 42
36. (1) Subsection 165.1(2) of the English version of the Act is replaced by the following:
Tenure of office and removal
(2) The Director of Military Prosecutions holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.
1998, c. 35, s. 42
(2) Subsection 165.1(2.1) of the Act is replaced by the following:
Powers of inquiry committee
(2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
37. Section 165.12 of the Act is amended by adding the following after subsection (3):
Effect of not preferring charge
(4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.
38. Section 165.19 of the Act is amended by adding the following after subsection (1):
Summoning of the accused person
(1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.
1998, c. 35, s. 42
39. Sections 165.21 and 165.22 of the Act are replaced by the following:
Appointment
165.21 (1) The Governor in Council may appoint officers of the regular force who are barristers or advocates of at least 10 years’ standing at the bar of a province, and who have been officers for at least 10 years, to be military judges.
Oath
(2) Every military judge shall, before commencing the duties of office, take the following oath of office:
I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)
Removal for cause
(3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.
Ceasing to hold office
(4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on reaching the retirement age prescribed in regulations made by the Governor in Council.
Resignation
(5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the notice is received by the Minister or on a later day if one is specified in the notice.
Reserve Force Military Judges
Panel established
165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name officers of the reserve force who are barristers or advocates of at least 10 years’ standing at the bar of a province and who have been officers for at least 10 years. An officer named to the panel is referred to in this Act as a “reserve force military judge”.
Oath
(2) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:
I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)
Removal from panel
165.221 (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.
Automatic removal from panel
(2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on reaching the retirement age prescribed in regulations made by the Governor in Council.
Voluntary removal from panel
(3) A reserve force military judge may request that his or her name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the notice is received by the Minister or on a later day if one is specified in the notice.
Chief Military Judge
165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.
Training
(2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.
Restriction on activities
165.223 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that he or she may be required to perform under this Act.
Remuneration
165.224 A reserve force military judge shall, while performing his or her duties or undergoing training, be paid remuneration at a daily rate prescribed in regulations.
Duties and Immunity of Military Judges
40. The Act is amended by adding the following after section 165.23:
Immunity
165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.
1998, c. 35, s. 42
41. Section 165.24 of the Act is replaced by the following:
Chief Military Judge
165.24 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.
1998, c. 35, s. 42
42. Section 165.26 of the Act is replaced by the following:
Acting Chief Military Judge
165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to perform the duties and functions of the Chief Military Judge.
43. The Act is amended by adding the following after section 165.27:
Rules of practice and procedure
165.28 The Chief Military Judge may, with the approval of the Governor in Council and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:
(a) pre-trial conferences and other preliminary proceedings;
(b) the making of applications under section 158.7;
(c) the bringing of persons before a military judge under section 159;
(d) the scheduling of trials by court martial;
(e) the minutes of proceedings of courts martial and other proceedings;
(f) documents, exhibits or other things connected with any proceeding, including public access to them; and
(g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.
Military Judges Inquiry Committee
Composition of Committee
165.29 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.
Chairperson
(2) The Chief Justice shall appoint one of the judges to act as Chairperson.
Powers of Inquiry Committee
(3) The Inquiry Committee has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
Inquiry required
165.3 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.
Other inquiry
(2) The Inquiry Committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.
Examination and recommendation
(3) The Chairperson of the Inquiry Committee may designate a judge appointed to the Committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.
Conduct of inquiry
(4) For greater certainty, the Inquiry Committee shall conduct its inquiry in accordance with the principle of fairness.
Inquiry held in public or private
(5) The Inquiry Committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.
Counsel
(6) The Chairperson of the Inquiry Committee may engage on a temporary basis the services of counsel to assist the Committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of their engagement and fix their remuneration and expenses.
Recommendation to the Governor in Council
(7) The Inquiry Committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,
(a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of
(i) infirmity,
(ii) having been guilty of misconduct,
(iii) having failed in the due execution of his or her judicial duties, or
(iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or
(b) the military judge does not satisfy the physical and medical fitness standards applicable to officers.
Report
(8) The Inquiry Committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the Inquiry Committee shall make its report available to the public.
Military Judges Compensation Committee
Composition of Committee
165.31 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:
(a) one person nominated by the military judges;
(b) one person nominated by the Minister; and
(c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).
Tenure and removal
(2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.
Reappointment
(3) A member is eligible to be reappointed for one further term.
Absence or incapacity
(4) In the event of the absence or incapacity of a member, the Governor in Council may appoint as a substitute temporary member a person nominated in accordance with subsection (1) to hold office.
Vacancy
(5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.
Quorum
(6) All three members of the Committee together constitute a quorum.
Remuneration
(7) The members of the Committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.
Mandate
165.32 (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.
Factors to be considered
(2) In conducting its inquiry, the Committee shall consider
(a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;
(b) the role of financial security of the judiciary in ensuring judicial independence;
(c) the need to attract outstanding candidates to the judiciary; and
(d) any other objective criteria that the Committee considers relevant.
Quadrennial inquiry
(3) The Committee shall commence an inquiry on September 1, 2007, and on every September 1 of every fourth year after 2007, and shall submit a report containing its recommendations to the Minister within nine months after the date of the commencement.
Postponement
(4) The Committee may, with the consent of the Minister and the military judges, postpone the date of commencement of a quadrennial inquiry.
Other inquiries
165.33 (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.32(1).
Report
(2) The Committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the Committee.
Continuance of duties
(3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the Committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the Committee.
Extension
165.34 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.
Duties of Minister
165.35 (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.
Response
(2) The Minister shall respond to a report within six months after receiving it.
1998, c. 35, s. 42
44. Paragraph 168(d) of the Act is replaced by the following:
(d) a member of the military police;
1998, c. 35, s. 42
45. Paragraph 171(d) of the Act is replaced by the following:
(d) a member of the military police;
1998, c. 35, s. 42
46. Subsection 179(1) of the English version of the Act is replaced by the following:
Courts martial
179. (1) A court martial has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
1998, c. 35, ss. 43, 93; 2001, c. 41, s. 101
47. Section 180 of the Act and the heading before it are replaced by the following:
Admission to Courts Martial and Certain Proceedings Before Military Judges
Proceedings public
180. (1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81 shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A court martial or a military judge, as the case may be, may order that the public be excluded during the whole or any part of its proceedings if the court martial or military judge considers that it is necessary
(a) in the interests of public safety or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations, national defence or national security.
Witnesses
(3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.
Clearing court
(4) For the purpose of any deliberation, a court martial or military judge, as the case may be, may cause the place where the proceedings are being held to be cleared.
48. Section 181 of the Act is replaced by the following:
Rules of evidence
181. (1) Subject to this Act, the Governor in Council may make rules of evidence at trials by court martial.
Publication
(2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.
1998, c. 35, s. 45(1)
49. Subsection 184(3) of the Act is replaced by the following:
Power to require personal attendance of witness
(3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.
1998, c. 35, s. 46
50. Section 187 of the Act is replaced by the following:
Question, matter or objection
187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of a charge may, on application, be heard and determined by any military judge or, if the court martial has been convened, the judge assigned to preside at the court martial.
51. The Act is amended by adding the following after section 191:
Plea of guilty
191.1 At any time after a General Court Martial or a Disciplinary Court Martial is convened but before the panel of the court martial assembles, 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.
1998, c. 35, s. 46
52. Subsection 192(2) of the Act is replaced by the following:
Voting
(2) A decision of a panel of a General Court Martial or a Disciplinary Court Martial in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.
53. The Act is amended by adding the following after section 192:
Disagreement of panel
192.1 (1) If the military judge presiding at a General Court Martial or a Disciplinary Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.
Dissolution of court martial
(2) If a panel is discharged under this section, the court martial is dissolved and the Court Martial Administrator shall convene a new court martial. The accused person may be dealt with as if the trial had never commenced.
54. The Act is amended by adding the following after section 194:
Absconding Accused
Accused absconding during court martial
194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.
Continuing or adjourning court martial
(2) A military judge presiding at the court martial of an accused person who absconds may
(a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in the absence of the accused person; or
(b) adjourn the trial to await the appearance of the accused person.
Continuing court martial
(3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.
Adverse inference
(4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.
Accused not entitled to reopening
(5) An accused person who reappears at his or her trial is not entitled to have any part of the proceedings that were conducted in his or her absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.
Counsel for accused person may continue to act
(6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.
2000, c. 10, s. 1
55. Paragraph (b) of the definition “peace officer” in section 196.11 of the Act is replaced by the following:
(b) an officer or a non-commissioned member of the Canadian Forces who is
(i) a member of the military police, or
(ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.
2000, c. 10, s. 1
56. The portion of subsection 196.12(1) of the Act before paragraph (a) is replaced by the following:
Information for warrant to take bodily substances for forensic DNA analysis
196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of military justice to do so and that there are reasonable grounds to believe
2000, c. 10, s. 1
57. (1) Paragraph 196.14(1)(b) of the Act is replaced by the following:
(b) may, in the case of a secondary designated offence, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of military justice to do so.
2000, c. 10, s. 1
(2) Subsection 196.14(2) of the Act is replaced by the following:
Exception
(2) The court martial is not required to make an order under paragraph (1)(a) if it is satisfied that the person has established that, were the order made, the impact on the privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.
2000, c. 10, s. 1
58. Subsection 196.15(1) of the Act is replaced by the following:
Offences committed before June 30, 2000
196.15 (1) Subject to section 196.16, if a person is found guilty of a designated offence committed before June 30, 2000, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of military justice to do so.
2005, c. 22, s. 48
59. Subsection 202.12(1.1) of the Act is replaced by the following:
Extension of time for holding inquiry
(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of military justice.
2005, c. 22, s. 49
60. (1) Paragraph 202.121(7)(c) of the Act is replaced by the following:
(c) that a stay is in the interests of the proper administration of military justice.
2005, c. 22, s. 49
(2) The portion of subsection 202.121(8) of the Act before paragraph (a) is replaced by the following:
Proper administration of military justice
(8) To determine whether a stay of proceedings is in the interests of the proper administration of military justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:
2005, c. 22, s. 49
(3) Paragraph 202.121(8)(b) of the Act is replaced by the following:
(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of military justice;
61. The Act is amended by adding the following after section 202.2:
Procedure at disposition hearing
202.201 (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.
Hearing to be informal
(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.
Interested person may be a party
(3) The court martial may designate as a party any person who has a substantial interest in protecting the interests of the accused person, if the court martial is of the opinion that it is just to do so.
Notice of hearing
(4) The court martial shall give notice of the hearing to the parties.
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.
Order excluding the public
(6) If the court martial considers it to be in the best interests of the accused person and not contrary to the public interest, the court martial may order the public or any members of the public to be excluded from the hearing or any part of the hearing.
Right to counsel
(7) The accused person or any other party has the right to be represented by counsel.
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.
Right of accused person to be present
(9) Subject to subsection (10), the accused person has the right to be present during the whole of the hearing.
Removal or absence of accused person
(10) The court martial may permit the accused person to be absent during the whole or any part of the hearing 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 whole or any part of the hearing for any of the following reasons:
(a) the accused person is interrupting the hearing and it is not feasible to continue the hearing in the presence of the accused person;
(b) the court martial is satisfied that the presence of the accused person 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).
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.
Witnesses
(12) A party may not compel the attendance of witnesses, but may request the court martial to do so.
Video links
(13) If the accused person agrees, the court martial may permit the accused person 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 he or she is represented by counsel.
Determination of mental condition of the 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 mental condition of the accused person since the disposition was made or last reviewed that may provide grounds for the release from custody of the accused person under subsection 201(1) or section 202.16. If the court martial determines that there has been such a change, the court martial shall notify every victim of the offence that he or she may prepare a statement.
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.
Procedure
(16) A statement of a victim must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.
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, on the request of a victim, permit the victim to read his or her statement or to present the statement in any other manner that the court martial considers appropriate.
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.
Copy of statement
(19) The Court Martial Administrator shall, as soon as practicable after receiving a statement of a victim, ensure that a copy is provided to the prosecutor and the accused person or his or her counsel.
Inquiry by court martial
(20) As soon as practicable 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 have been advised that he or she may prepare a statement.
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 the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
Definition of “victim”
(22) In this section, “victim” has the same meaning as in section 203.
2005, c. 22, s. 56
62. (1) The portion of subsection 202.23(2) of the Act before paragraph (a) is replaced by the following:
Arrest without warrant for contravention of disposition
(2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person
2005, c. 22, s. 56
(2) Subsection 202.23(2.1) of the Act is replaced by the following:
Accused person released subject to conditions
(2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.
2005, c. 22, s. 56
(3) The portion of subsection 202.23(2.2) of the English version of the Act before paragraph (a) is replaced by the following:
Continued detention
(2.2) The member of the military police or other peace officer shall not release the accused person if they believe on reasonable grounds
2005, c. 22, s. 58
63. Subsection 202.25(1) of the Act is replaced by the following:
Powers of Review Board under Criminal Code
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, 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.
Application
(1.1) For the application 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 shall be read as a reference to the Director of Military Prosecutions.
64. The Act is amended by adding the following after section 202.26:
Division 8
Sentencing
Interpretation
Definitions
203. The following definitions apply in this Division.
“common-law partner”
« conjoint de fait »
« conjoint de fait »
“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.
“victim”
« victime »
« victime »
“victim”, in relation to an offence,
(a) means a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and
(b) includes — if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1) — the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.
Purposes and Principles of Sentencing by Service Tribunals
Fundamental purposes of sentencing
203.1 (1) The fundamental purposes of sentencing are
(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and
(b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
Objectives
(2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:
(a) to promote a habit of obedience to lawful commands and orders;
(b) to maintain public trust in the Canadian Forces as a disciplined armed force;
(c) to denounce unlawful conduct;
(d) to deter offenders and other persons from committing offences;
(e) to assist in rehabilitating offenders;
(f) to assist in reintegrating offenders into military service;
(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;
(h) to provide reparations for harm done to victims or to the community; and
(i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.
Fundamental principle of sentencing
203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that
(i) the offender, in committing the offence, abused his or her rank or other position of trust or authority,
(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,
(iii) the offender, in committing the offence, abused his or her spouse or common-law partner,
(iv) the offender, in committing the offence, abused a person under the age of 18 years,
(v) the commission of the offence resulted in substantial harm to the conduct of a military operation,
(vi) the offence was committed in a theatre of hostilities,
(vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(viii) the offence was a terrorism offence;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;
(d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and
(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.
Abuse of persons under the age of eighteen
203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
Facts Relevant to the Determination of a Sentence
Disputed facts
203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court martial shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at trial;
(b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.
Panel
(2) In the case of a General Court Martial or a Disciplinary Court Martial, the court martial
(a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
Victim Impact Statement
Duty to consider victim impact statement
203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, 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.
Procedure
(2) A statement of a victim must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.
Presentation of statement
(3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, on the request of a victim, permit the victim to read his or her statement or to present the statement in any other manner that the court martial considers appropriate.
Evidence concerning victim admissible
(4) 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 determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.
Copy of statement
203.7 As soon as practicable after a finding of guilty, the Court Martial Administrator shall ensure that a copy of any statement of a victim is provided to the prosecutor and the accused or counsel for the accused.
Inquiry by court martial
203.8 (1) As soon as practicable after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that he or she may prepare a statement.
Adjournment
(2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
Absolute Discharge
Absolute discharge
203.9 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life — the service tribunal before which the accused appears may, if it considers it to be in the best interests of the accused person and not contrary to the public interest, instead of convicting the accused person, direct that the accused person be discharged absolutely.
Effect of discharge
(2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that
(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
References to section 730 of the Criminal Code
(3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).
Restitution
Restitution order
203.91 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and
(c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.
Enforcing restitution order
203.92 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
203.93 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the possession of the offender and seized at the time of the arrest of the offender if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.
Notice of orders of restitution
203.94 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.
Civil remedy not affected
203.95 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.
Passing of Sentence
One sentence only to be passed
203.96 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.
1998, c. 35, s. 55
65. The heading “Division 8” before section 204 of the Act is replaced by the following:
Division 8.1
1998, c. 35, s. 57
66. Subsection 204(1) of the Act is replaced by the following:
Commencement of term
204. (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.
1998, c. 35, s. 60
67. Section 215 of the Act is replaced by the following:
Suspension of execution of punishment
215. (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.
Conditions
(2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:
(a) to keep the peace and be of good behaviour;
(b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in paragraph 215.2(1)(a), (b) or (c); and
(c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.
Other conditions
(3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.
Term if suspended punishment put into execution
(4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.
Varying conditions
215.1 On application by an offender, a condition imposed under section 215 may be varied, or another condition substituted for that condition, by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;
(b) a military judge, in the case of a condition imposed by a court martial; or
(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.
Hearing into breach of conditions
215.2 (1) On application by a representative of the Canadian Forces, a determination of whether an offender has breached a condition imposed under section 215 may be made by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;
(b) a military judge, in the case of a condition imposed by a court martial; or
(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.
Revocation of suspension or changes to conditions
(2) If a person referred to in any of paragraphs (1)(a) to (c) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may
(a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority empowered to do so to commit the offender; or
(b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.
Non-appearance of accused person
215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant in the prescribed form for the arrest of the offender.
1998, c. 35, s. 60
68. Subsections 216(1) and (2) of the Act are replaced by the following:
Definition of “suspending authority”
216. (1) In this section and section 217, “suspending authority” means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.
Suspension of imprisonment or detention
(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the welfare of the offender.
Notification
(2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.
Committal after suspension
(2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the conduct of the offender is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority empowered to do so to commit the offender.
69. Subsection 217(1) of the Act is replaced by the following:
Review and remission
217. (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.
70. Section 218 of the Act is repealed.
71. The Act is amended by adding the following after section 226:
Parole Eligibility
Sentence of imprisonment for life
226.1 (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:
(a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or
(e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.
Provisions of Criminal Code apply
(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of life imprisonment imposed under this Act, and for that purpose
(a) a reference in sections 745.2 and 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and
(b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when the offender makes an application under that section.
Power of court martial to delay parole
226.2 (1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.
Condition
(2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the person, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.
Criminal organization offences
(3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.
Power of court martial to delay parole
(4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the person, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
Objectives
(5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with rehabilitation of the person, in all cases, being subordinate to those paramount objectives.
72. Section 230 of the Act is amended by striking out the word “or” at the end of paragraph (e) and by adding the following after paragraph (f):
(g) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;
(h) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(i) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or
(j) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).
73. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (f.1) and by adding the following after paragraph (g):
(h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;
(i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or
(k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).
1998, c. 35, s. 82
74. Subsection 249.18(2) of the Act is replaced by the following:
Tenure of office
(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.
Powers of inquiry committee
(2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
1998, c. 35, s. 82
75. Subsection 249.21(1) of the French version of the Act is replaced by the following:
Avocats
249.21 (1) Le directeur du service d’avocats de la défense peut être assisté par des avocats inscrits au barreau d’une province.
76. The Act is amended by adding the following after section 249.21:
Appeal committee
249.211 The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.
1998, c. 35, s. 82
77. Subsection 249.25(1) of the Act is replaced by the following:
Restitution of property in case of conviction
249.25 (1) A service tribunal that convicts or discharges absolutely a person of an offence shall 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 service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.
78. The Act is amended by adding the following after section 249.26:
Criminal Record
Convictions in respect of certain offences
249.27 (1) A person who is convicted of any of the following offences has not been convicted of a criminal offence:
(a) an offence under section 85, 86, 90, 97 or 129 in respect of which the offender is sentenced to a minor punishment or a fine of $500 or less, or both; and
(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.
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.
1998, c. 35, s. 82
79. The definitions “military police” and “Provost Marshal” in section 250 of the Act are repealed.
80. (1) Section 250.1 of the Act is amended by adding the following after subsection (4):
Completion of duties
(4.1) A person who has ceased to hold office as a member for any reason other than their removal may, at the request of the Chairperson and for a period not exceeding six months that is authorized by the Chairperson, continue to participate in the review of any complaint that the person began to review before ceasing to hold office. During that period, the person is deemed to be a part-time member of the Commission.
1998, c. 35, s. 82
(2) Subsection 250.1(11) of the French version of the Act is replaced by the following:
Serment
(11) Avant d’entrer en fonctions, les membres prêtent le serment suivant :
Moi, .........., je jure (ou j’affirme) solennellement que j’exercerai fidèlement et honnêtement les devoirs qui m’incombent en ma qualité de membre de la Commission d’examen des plaintes concernant la police militaire en conformité avec les prescriptions de la Loi sur la défense nationale applicables à celle-ci, ainsi que toutes règles et instructions établies sous son régime, et que je ne révélerai ni ne ferai connaître, sans y avoir été dûment autorisé(e), rien de ce qui parviendra à ma connaissance en raison de mes fonctions. (Dans le cas du serment, ajouter : Ainsi Dieu me soit en aide.)
1998, c. 35, s. 82
81. (1) Subsection 250.18(2) of the French version of the Act is replaced by the following:
Absence de préjudice
(2) La plainte peut être déposée même en l’absence de préjudice.
(2) Section 250.18 of the Act is amended by adding the following after subsection (2):
Complaint by Chairperson
(3) The Chairperson shall not make a conduct complaint unless there are reasonable grounds to investigate the complaint. The Chairperson shall notify the Minister and the Provost Marshal of the complaint and explain in writing why there are reasonable grounds to investigate the complaint.
No penalty for complaint
(4) A person may not be penalized for exercising the right to make a conduct complaint so long as the complaint is made in good faith.
Non-application
(5) Subsection (1) does not apply in respect of the conduct of a member of the military police who is attached or seconded to the Canadian Forces.
1998, c. 35, s. 82
82. (1) Section 250.19 of the French version of the Act is replaced by the following:
Plainte d’un policier militaire
250.19 (1) Le policier militaire qui mène ou supervise une enquête, ou qui l’a menée ou supervisée, peut, dans le cadre de la présente section, porter plainte contre un officier ou militaire du rang ou un cadre supérieur du ministère s’il est fondé à croire, pour des motifs raisonnables, que celui-ci s’est ingéré dans l’enquête.
Intimidation et abus d’autorité
(2) Sont assimilés à l’ingérence dans une enquête l’intimidation et l’abus d’autorité.
(2) Section 250.19 of the Act is amended by adding the following after subsection (2):
No penalty for complaint
(3) A person may not be penalized for exercising the right to make an interference complaint so long as the complaint is made in good faith.
Non-application
(4) Subsection (1) does not apply in respect of alleged interference by a member of any class of officers or non-commissioned members attached or seconded to the Canadian Forces that is prescribed in regulations made by the Governor in Council.
1998, c. 35, s. 82
83. Section 250.2 of the French version of the Act is replaced by the following:
Prescription
250.2 Les plaintes se prescrivent par un an à compter du fait qui en est à l’origine, sauf prorogation accordée à la requête du plaignant par le président, si ce dernier décide que la prorogation est raisonnable dans les circonstances.
1998, c. 35, s. 82
84. Subparagraphs 250.21(2)(c)(ii) and (iii) of the French version of the Act are replaced by the following:
(ii) le président, le chef d’état-major de la défense, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un officier ou militaire du rang,
(iii) le président, le sous-ministre, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un cadre supérieur du ministère.
1998, c. 35, s. 82
85. Section 250.22 of the French version of the Act is replaced by the following:
Avis — plainte pour inconduite
250.22 Dans les meilleurs délais après la réception ou la notification d’une plainte pour inconduite, le grand prévôt avise par écrit la personne qui en fait l’objet de sa teneur, pour autant que cela, à son avis, ne risque pas de nuire à la tenue d’une enquête sous le régime de la présente loi.
1998, c. 35, s. 82
86. Subsection 250.24(2) of the French version of the Act is replaced by the following:
Avis du retrait
(2) Le cas échéant, le président en avise aussitôt, par écrit, le grand prévôt et la personne qui fait l’objet de la plainte.
1998, c. 35, s. 82
87. Section 250.25 of the Act is replaced by the following:
Record of complaints
250.25 (1) The Provost Marshal shall establish and maintain a record of all complaints received under this Division.
Request for documents
(2) The Complaints Commission may request the following documents from the Provost Marshal:
(a) a copy of the complaint;
(b) a copy of the acknowledgment of receipt described in paragraph 250.21(2)(b);
(c) a copy of any notice sent under section 250.22 or subsection 250.24(2), 250.27(5) or 250.28(3);
(d) a copy of any report sent under section 250.29 or 250.3;
(e) a copy of the document by which the complaint was referred under section 250.31; and
(f) in the case of a conduct complaint that is resolved informally, a document signed by the Provost Marshal stating that the complaint has been resolved informally.
Providing documents
(3) The Provost Marshal shall provide the documents to the Complaints Commission as soon as practicable.
1998, c. 35, s. 82
88. Subsection 250.26(2) of the Act is replaced by the following:
Complaint about Provost Marshal
(2) If a conduct complaint is about the conduct of the Provost Marshal, or if the Provost Marshal is involved in the conduct complained of, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.
Delegation
(3) The Chief of the Defence Staff may delegate the powers and duties described in subsection (2) only to the Vice Chief of the Defence Staff.
89. The Act is amended by adding the following after section 250.26:
Deadline for resolving or disposing of a complaint
250.261 The Provost Marshal shall resolve or dispose of a conduct complaint — other than a complaint that results in an investigation of an alleged criminal or service offence — within one year after receiving or being notified of the complaint.
1998, c. 35, s. 82
90. (1) Subsection 250.27(1) of the French version of the Act is replaced by the following:
Règlement amiable
250.27 (1) Dès réception ou notification de la plainte pour inconduite, le grand prévôt décide si elle peut être réglée à l’amiable; avec le consentement du plaignant et de la personne qui en fait l’objet, il peut alors tenter de la régler.
1998, c. 35, s. 82
(2) Subsection 250.27(3) of the French version of the Act is replaced by the following:
Déclarations inadmissibles
(3) Les réponses ou déclarations faites, dans le cadre d’une tentative de règlement amiable, par le plaignant ou par la personne qui fait l’objet de la plainte ne peuvent être utilisées devant une juridiction disciplinaire, criminelle, administrative ou civile, sauf si leur auteur les a faites, tout en les sachant fausses, dans l’intention de tromper.
1998, c. 35, s. 82
(3) Paragraph 250.27(5)(b) of the Act is replaced by the following:
(b) the right of the complainant to refer the complaint to the Complaints Commission within 60 days after receiving the notice or to request an extension of the time during which the complaint may be referred.
1998, c. 35, s. 82
(4) Subsection 250.27(6) of the Act is replaced by the following:
Record of informal resolution
(6) If a conduct complaint is resolved informally,
(a) the details of its resolution shall be set out in writing;
(b) the complainant and the person who is the subject of the complaint shall give their written agreement to the resolution of the complaint; and
(c) the Provost Marshal shall notify the Chairperson in writing that the complaint has been resolved informally.
Confidentiality
(7) The details of an informal resolution of a complaint are confidential and may be disclosed only with the written consent of the complainant and the person who is the subject of the complaint.
1998, c. 35, s. 82
91. Paragraph 250.28(3)(b) of the Act is replaced by the following:
(b) the right of the complainant to refer the complaint to the Complaints Commission within 60 days after receiving the notice or to request an extension of the time during which the complaint may be referred.
1998, c. 35, s. 82
92. (1) The portion of section 250.29 of the French version of the Act before paragraph (a) is replaced by the following:
Rapport d’enquête
250.29 Au terme de l’enquête, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport comportant les éléments suivants :
1998, c. 35, s. 82
(2) Paragraph 250.29(d) of the Act is replaced by the following:
(d) the right of the complainant to refer the complaint to the Complaints Commission within 60 days after receiving the report or to request an extension of the time during which the complaint may be referred.
1998, c. 35, s. 82
93. Subsection 250.3(1) of the French version of the Act is replaced by the following:
Rapports provisoires
250.3 (1) Au plus tard soixante jours après la réception ou la notification de la plainte et, par la suite, tous les trente jours, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport écrit sur l’état d’avancement de l’affaire.
1998, c. 35, s. 82
94. Section 250.31 of the Act is replaced by the following:
Reference to Complaints Commission
250.31 (1) A complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may, within 60 days after receiving notice of the direction or report, refer the complaint in writing to the Complaints Commission for review.
Information to be provided
(2) If a complainant refers a complaint to the Complaints Commission,
(a) the Chairperson shall send to the Provost Marshal a copy of the document referring the complaint to the Complaints Commission; and
(b) the Provost Marshal shall provide the Chairperson with the documents referred to in paragraphs 250.25(2)(a) to (f), and any other document or information relevant to the complaint other than a document or information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.
Extensions
250.311 (1) On application by a complainant made before the expiry of the 60 day period referred to in subsection 250.31(1), the Chairperson may extend by up to 120 days the period during which the complainant may refer a complaint to the Complaints Commission. The application must include the reasons why an extension should be granted.
Public interest
(2) On application by a complainant who has not referred a complaint within the period referred to in subsection 250.31(1) or within an extended period described in subsection (1), the Chairperson may — if he or she is of the opinion that it is necessary in the public interest — permit the complainant to refer the complaint to the Complaints Commission within any reasonable period that the Chairperson may fix.
Direction or report is final
250.312 A direction or report of the Provost Marshal is final unless the complaint is referred to the Complaints Commission.
1998, c. 35, s. 82
95. Subsection 250.35(3) of the French version of the Act is replaced by the following:
Avis
(3) Le cas échéant, il avise par écrit de sa décision le plaignant, la personne qui fait l’objet de la plainte, le chef d’état-major de la défense ou le sous-ministre, selon le cas, le juge-avocat général et le grand prévôt. L’avis fait mention des motifs de sa décision.
1998, c. 35, s. 82
96. Paragraphs 250.36(b) and (c) of the French version of the Act are replaced by the following:
b) le chef d’état-major de la défense, dans le cas où un officier ou militaire du rang fait l’objet de la plainte;
c) le sous-ministre, dans le cas où un cadre supérieur du ministère fait l’objet de la plainte;
1998, c. 35, s. 82
97. (1) Subsection 250.38(1) of the English version of the Act is replaced by the following:
Public interest
250.38 (1) If the Chairperson considers it advisable in the public interest, the Chairperson may, at any time while conducting a review of a conduct complaint or an interference complaint, cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into the complaint.
1998, c. 35, s. 82
(2) Subsection 250.38(3) of the French version of the Act is replaced by the following:
Avis
(3) S’il décide de faire tenir une enquête, il transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.
1998, c. 35, s. 82
98. Subsection 250.4(1) of the French version of the Act is replaced by the following:
Audience
250.4 (1) Le président, s’il décide de convoquer une audience, désigne le ou les membres de la Commission qui la tiendront et transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.
1998, c. 35, s. 82
99. The portion of subsection 250.41(1) of the French version of the Act before paragraph (a) is replaced by the following:
Pouvoirs de la Commission
250.41 (1) Dans le cadre de toute audience, la Commission dispose, relativement à la plainte dont elle est saisie, des pouvoirs suivants :
1998, c. 35, s. 82
100. (1) Subsections 250.43(1) and (2) of the Act are replaced by the following:
Notice of hearing
250.43 (1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve on the complainant and the person who is the subject of the complaint a notice in writing of the time, date and place fixed for the hearing.
Convenience to be considered
(2) The Complaints Commission shall consider the convenience of the complainant and the person who is the subject of the complaint in fixing the time, date and place for the hearing.
1998, c. 35, s. 82
(2) Subsection 250.43(3) of the French version of the Act is replaced by the following:
Report de l’audience
(3) Si la plainte porte sur une conduite qui fait aussi l’objet d’une instance disciplinaire ou criminelle devant un tribunal de première instance, l’audience est différée jusqu’à la conclusion de l’instance.
1998, c. 35, s. 82
101. Section 250.44 of the French version of the Act is replaced by the following:
Droits des intéressés
250.44 Le plaignant, la personne qui fait l’objet de la plainte et toute autre personne qui convainc la Commission qu’elle a un intérêt direct et réel dans celle-ci doivent avoir toute latitude de présenter des éléments de preuve à l’audience, d’y contre-interroger les témoins et d’y faire des observations, en personne ou par l’intermédiaire d’un avocat.
1998, c. 35, s. 82
102. Subsection 250.49(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans le cas où le grand prévôt fait l’objet de la plainte, c’est le chef d’état-major de la défense qui est chargé de la révision.
1998, c. 35, s. 82
103. Section 250.5 of the French version of the Act is replaced by the following:
Révision — plainte pour ingérence
250.5 (1) Sur réception du rapport établi au titre des articles 250.36, 250.39 ou 250.48, la plainte pour ingérence est révisée à la lumière des conclusions et recommandations qu’il contient par le chef d’état-major de la défense, dans le cas où la personne qui en fait l’objet est un officier ou militaire du rang, ou par le sous-ministre, dans le cas où elle est un cadre supérieur du ministère.
Exception
(2) Dans le cas où le chef d’état-major de la défense ou le sous-ministre fait l’objet de la plainte, c’est le ministre qui est chargé de la révision.
1998, c. 35, s. 82
104. Subsection 250.53(2) of the French version of the Act is replaced by the following:
Destinataires
(2) Il en transmet copie au ministre, au sous-ministre, au chef d’état-major de la défense, au juge-avocat général, au grand prévôt, au plaignant, à la personne qui fait l’objet de la plainte ainsi qu’à toute personne qui a convaincu la Commission qu’elle a un intérêt direct et réel dans la plainte.
1998, c. 35, s. 82
105. Section 251.2 of the Act is replaced by the following:
Witness fees and allowances
251.2 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 Grievance Board, 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.
106. The heading before section 267 of the Act is replaced by the following:
Limitation Periods, Liability and Exemptions
107. Subsection 269(1) of the Act is replaced by the following:
Limitation period
269. (1) Unless an action or other proceeding is commenced within two years after the date of the act, neglect or default complained of, no action or other proceeding lies against Her Majesty or any person for
(a) an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority;
(b) any neglect or default in the execution of this Act or any regulations or military or departmental duty or authority; or
(c) an act or any neglect or default that is incidental to an act, neglect or default described in paragraph (a) or (b).
Prosecutions
(1.1) A prosecution in respect of an offence — other than an offence under this Act, the Geneva Conventions Act or the Crimes Against Humanity and War Crimes Act — relating to an act, neglect or default described in subsection (1) may not be commenced after six months from the date of the act, neglect or default.
R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 56)
108. Section 272 of the Act is replaced by the following:
Arrest of dependants
272. The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.
109. The Act is amended by adding the following after section 273.6:
Five-year Review
Review
273.601 (1) The Minister shall cause an independent review of the following provisions, and their operation, to be undertaken:
(a) sections 29 to 29.28;
(b) Parts III and IV; and
(c) sections 251, 251.2, 256, 270, 272, 273, 273.1 to 273.5 and 302.
Report to Parliament
(2) The Minister shall cause a report of the review to be laid before each House of Parliament within five years after the day on which this section comes into force, and within every five-year period following the tabling of a report under this subsection.
2001, c. 41, s. 102
110. Subsection 273.63(1) of the French version of the Act is replaced by the following:
Nomination du commissaire et durée du mandat
273.63 (1) Le gouverneur en conseil peut nommer, à titre inamovible pour une période maximale de cinq ans, un juge surnuméraire ou un juge à la retraite d’une juridiction supérieure qu’il charge de remplir les fonctions de commissaire du Centre de la sécurité des télécommunications.
R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 63)
111. Subsection 299(2) of the Act is replaced by the following:
Certificate of Judge Advocate General
(2) A certificate that appears to have been signed by the Judge Advocate General, or by any person whom the Judge Advocate General may appoint for that purpose, attesting that an officer or non-commissioned member was convicted or discharged absolutely under this Act of desertion or absence without leave or that the officer or non-commissioned member was or has been continuously absent without leave for six months or more, and setting out the date of commencement and, if applicable, the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence of the facts attested to in that certificate.
1998, c. 35, s. 90
112. 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 Grievance Board, the Military Judges Inquiry Committee, a service tribunal, 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
113. The Act is amended by adding the following after section 306:
Applications for employment
307. Every person who uses or authorizes the use of an application form, for or relating to any of the following matters, that contains a question that by its terms requires the applicant to disclose a conviction for an offence referred to in paragraph 249.27(1)(a) or (b) is guilty of an offence and liable on summary conviction to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months, or to both:
(a) employment in any department set out in Schedule I to the Financial Administration Act;
(b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;
(c) enrolment in the Canadian Forces; or
(d) employment in or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
114. The French version of the Act is amended by replacing the word “prévôt” with the words “grand prévôt” wherever it occurs in the following provisions:
(a) section 250.21;
(b) subsection 250.26(1);
(c) subsection 250.27(4);
(d) subsection 250.28(1);
(e) subsection 250.32(3);
(f) subsections 250.34(2) and (3);
(g) subsection 250.35(1);
(h) paragraph 250.36(e);
(i) paragraph 250.37(1)(d);
(j) subsection 250.38(5);
(k) section 250.39;
(l) section 250.48; and
(m) subsection 250.49(1).
115. The French version of the Act is amended by replacing the expressions “mise en cause” and “mise en cause par la plainte” with the expression “qui fait l’objet de la plainte” wherever they occur in the following provisions:
(a) section 250.23;
(b) subsection 250.3(3);
(c) subsections 250.33(1) and (3);
(d) subsections 250.37(1) and (3);
(e) subsection 250.38(4); and
(f) section 250.46.
TRANSITIONAL PROVISIONS
Military judges continuing in office
116. A person who, immediately before the coming into force of section 39 of this Act, held office as a military judge shall continue in office as if the person had been appointed under subsection 165.21(1) of the National Defence Act, as enacted by section 39 of this Act.
Members of Inquiry Committee continuing in office
117. A person who, immediately before the coming into force of section 43 of this Act, held office as a member of an Inquiry Committee established under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, shall continue in office as if the person had been appointed under subsection 165.29(1) of the National Defence Act, as enacted by section 43 of this Act.
Members of Compensation Committee continuing in office
118. A person who, immediately before the coming into force of section 43 of this Act, held office as a member of a Compensation Committee established under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, shall continue in office as a member of the Military Judges Compensation Committee as if the person had been appointed under subsection 165.31(1) of the National Defence Act, as enacted by section 43 of this Act.
Inquiry by Inquiry Committee
119. An inquiry under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, that, immediately before the coming into force of section 43 of this Act, had not been completed shall be continued as an inquiry under sections 165.29 and 165.3 of the National Defence Act, as enacted by section 43 of this Act.
Review by Compensation Committee
120. A review under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, that, immediately before the coming into force of section 43 of this Act, had not been completed shall be continued as an inquiry under sections 165.31 to 165.35 of the National Defence Act, as enacted by section 43 of this Act.
Criminal record
121. Section 249.27 of the National Defence Act, as enacted by section 78 of this Act, applies to a person who, before the coming into force of section 78 of this Act, was convicted of an offence described in paragraph 249.27(1)(a) or (b) of the National Defence Act.
Limitation period
122. The limitation period prescribed by subsection 269(1) of the National Defence Act, as enacted by section 107 of this Act, applies only to acts, neglect or default that occurs after the coming into force of section 107 of this Act.
CONSEQUENTIAL AMENDMENTS
123. Section 96 of An Act to amend the National Defence Act and to make consequential amendments to other Acts, chapter 35 of the Statutes of Canada, 1998, is repealed.
124. Section 77 of the Public Safety Act, 2002, chapter 15 of the Statutes of Canada, 2004, is repealed.
125. (1) The Corrections and Conditional Release Act is amended by replacing every reference to section 140.3 of the National Defence Act with a reference to section 226.1 of the National Defence Act wherever it occurs in the following provisions:
(a) the portion of subsection 17(1) after paragraph (d) and before paragraph (e);
(b) the portion of subsection 18(2) before paragraph (a);
(c) the portion of subsection 119(1) before paragraph (a);
(d) subsections 119(1.1) and (1.2);
(e) subsection 120(1);
(f) subsection 120.2(3); and
(g) subsection 120.3.
(2) The Act is amended by replacing every reference to section 140.4 of the National Defence Act with a reference to section 226.2 of the National Defence Act wherever it occurs in the following provisions:
(a) section 120;
(b) subparagraph 120.2(1)(b)(i);
(c) the portion of subsection 121(1) before paragraph (a); and
(d) subparagraph 125(1)(a)(v).
COORDINATING AMENDMENTS
2005, c. 25
126. (1) In this section, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005.
(2) On the later of the day on which section 24 of the other Act comes into force and the day on which subsection 57(1) of this Act comes into force — or, if those days are the same day, then on that day — paragraph 196.14(1)(b) of the National Defence Act is replaced by the following:
(b) may, in the case of a primary designated offence in respect of which a finding of not responsible on account of mental disorder has been rendered or in the case of a secondary designated offence, on application by the prosecutor, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of military justice to do so.
(3) On the later of the day on which section 24 of the other Act comes into force and the day on which subsection 57(2) of this Act comes into force — or, if those days are the same day, then on that day — subsection 196.14(2) of the National Defence Act is replaced by the following:
Exception
(2) The court martial is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 if it is satisfied that the person has established that, were the order made, the impact on the privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.
(4) On the later of the day on which section 25 of the other Act comes into force and the day on which section 58 of this Act comes into force — or, if those days are the same day, then on that day — subsection 196.15(1) of the National Defence Act is replaced by the following:
Offences committed before June 30, 2000
196.15 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence committed before June 30, 2000, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of military justice to do so.
Bill S-3
127. (1) Subsections (2) to (14) apply if Bill S-3, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act (referred to in this section as the “other Act”), receives royal assent.
(2) On the later of the day on which section 1 of the other Act comes into force and the day on which section 3 of this Act comes into force — or, if those days are the same day, then on that day —
(a) the definition “Provost Marshal” in subsection 2(1) of the National Defence Act is repealed;
(b) the French version of the National Defence Act is amended by replacing the word “prévôt” with the words “grand prévôt” wherever it occurs in the following provisions:
(i) subsection 227.04(3),
(ii) subparagraph 227.05(1)(d)(iii),
(iii) subsection 227.07(1),
(iv) subsection 227.08(4),
(v) section 227.11,
(vi) subsection 227.13(3),
(vii) subsections 227.15(4) and (5),
(viii) subsection 227.16(3),
(ix) subsections 227.18(1) and (2),
(x) subsections 227.19(1) and (2),
(xi) section 227.21, and
(xii) subsection 240.5(3);
(c) the French version of the Criminal Code is amended by replacing the word “prévôt” with the words “grand prévôt” in the following provisions:
(i) section 5 of Form 52 in Part XXVIII, and
(ii) section 5 of Form 53 in Part XXVIII; and
(d) the French version of the Sex Offender Information Registration Act is amended by replacing the word “prévôt” with the words “grand prévôt” in the following provisions:
(i) subsections 8.2(1) to (7), and
(ii) subsection 12(2).
(3) On the later of the day on which section 4 of the other Act comes into force and the day on which section 65 of this Act comes into force — or, if those days are the same day, then on that day — the heading “Division 8.1” before section 227 of the National Defence Act is replaced by the following:
Division 8.2
(4) If section 71 of this Act comes into force before section 4 of the other Act, the portion of section 4 of the other Act before the heading “Division 8.1” is replaced by the following:
4. The Act is amended by adding the following after section 226.2:
(5) If section 71 of this Act comes into force on the same day as section 4 of the other Act, then section 4 of the other Act is deemed to have come into force before section 71 of this Act.
(6) If section 72 of this Act comes into force before section 5 of the other Act, section 5 of the other Act is replaced by the following:
5. Section 230 of the Act is amended by striking out the word “or” at the end of paragraph (i), by adding the word “or” at the end of paragraph (j) and by adding the following after paragraph (j):
(k) the legality of a decision made under section 227.01.
(7) If section 5 of the other Act comes into force before section 72 of this Act, section 72 of this Act is replaced by the following:
72. Section 230 of the Act is amended by striking out the word “or” at the end of paragraph (f) and by adding the following after paragraph (g):
(h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;
(i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or
(k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any conditions imposed under subsection 215(3).
(8) If section 72 of this Act comes into force on the same day as section 5 of the other Act, then section 72 of this Act is deemed to have come into force before section 5 of the other Act and subsection (6) applies.
(9) If section 73 of this Act comes into force before section 6 of the other Act, section 6 of the other Act is replaced by the following:
6. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (j), by adding the word “or” at the end of paragraph (k) and by adding the following after paragraph (k):
(l) the legality of a decision made under section 227.01.
(10) If section 6 of the other Act comes into force before section 73 of this Act, section 73 of this Act is replaced by the following:
73. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (g) and by adding the following after paragraph (h):
(i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;
(j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or
(l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any conditions imposed under subsection 215(3).
(11) If section 73 of this Act comes into force on the same day as section 6 of the other Act, then section 73 of this Act is deemed to have come into force before section 6 of the other Act and subsection (9) applies.
(12) If section 79 of this Act comes into force before section 10 of the other Act, section 10 of the other Act is repealed.
(13) If section 10 of the other Act comes into force before section 79 of this Act, section 79 of this Act is replaced by the following:
1998, c. 35, s. 82
79. The definition “military police” in section 250 of the Act is repealed.
(14) If section 79 of this Act comes into force on the same day as section 10 of the other Act, then section 79 of this Act is deemed to have come into force before section 10 of the other Act and subsection (12) applies.
COMING INTO FORCE
Order in council
128. The provisions of this Act, other than sections 126 and 127, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Available from:
Publishing and Depository Services
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Explanatory Notes
National Defence Act
Clause 1: (1) Existing text of the definition:
“military judge” means a military judge appointed under subsection 165.21(1);
(2) New.
Clause 2: (1) Relevant portion of subsection 12(3):
(3) The Treasury Board may make regulations
(a) prescribing the rates and conditions of issue of pay of military judges;
(2) New.
Clause 3: New.
Clause 4: New.
Clause 5: Existing text of section 29.11:
29.11 The Chief of the Defence Staff is the final authority in the grievance process.
Clause 6: (1) Existing text of subsection 29.12(1):
29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.
(2) Relevant portion of subsection 29.12(2):
(2) When referring a grievance to the Grievance Board, the Chief of the Defence Staff shall provide the Grievance Board with a copy of
...
(b) the decision made by each authority in respect of the grievance; and
Clause 7: Existing text of subsection 29.13(2):
(2) If the Chief of the Defence Staff does not act on a finding or recommendation of the Grievance Board, the Chief of the Defence Staff shall include the reasons for not having done so in the decision respecting the disposition of the grievance.
Clause 8: Existing text of section 29.14:
29.14 The Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, except
(a) the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; and
(b) the power to delegate under this section.
Clause 9: (1) New.
(2) Existing text of subsection 29.16(11):
(11) Every member shall, before commencing the duties of office, take the following oath of office:
I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Canadian Forces Grievance Board in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Canadian Forces Grievance Board, 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.)
Clause 10: Existing text of subsection 29.28(1):
29.28 (1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievance Board during that year and its recommendations, if any.
Clause 11: Existing text of subsection 30(4):
(4) Subject to regulations made by the Governor in Council, where
(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, and
(b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,
the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.
Clause 12: Existing text of subsection 35(1):
35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.
Clause 13: Relevant portion of subsection 66(1):
66. (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person
...
(b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.
Clause 14: New.
Clause 15: Existing text of section 101.1:
101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under Division 3, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
Clause 16: Existing text of subsection 118(1):
118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to the tribunals referred to in the definition “service tribunal” in section 2, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military Police Complaints Commission, a board of inquiry and a commissioner taking evidence under this Act.
Clause 17: Existing text of section 137:
137. (1) Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of the attempt.
(2) Where, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be convicted of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.
(3) An accused person who is convicted under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he was charged with attempting to commit.
Clause 18: Existing text of sections 140.3 and 140.4:
140.3 (1) Where a court martial imposes a punishment of imprisonment for life, the sentence to be pronounced shall be
(a) in respect of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy contrary to section 73 or 74, an offence related to security contrary to section 75 or an offence in relation to prisoners of war contrary to section 76, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b) in respect of a person who has been convicted of an offence of high treason or an offence of first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(c) in respect of a person who has been convicted of an offence of second degree murder if that person has previously been convicted of culpable homicide that is murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(d) in respect of a person who has been convicted of an offence of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or any greater number of years, not being more than twenty-five, that has been substituted under subsection (2); and
(e) in respect of a person who has been convicted of any other offence, that the person be sentenced to imprisonment for life with normal eligibility for parole.
(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of life imprisonment imposed under this Act, and
(a) a reference in sections 745.2 and 745.3 of the Criminal Code to a jury is deemed to be a reference to the panel of a General Court Martial; and
(b) a reference in section 745.6 of the Criminal Code to the province in which a conviction took place is deemed, in respect of a conviction that took place outside Canada, to be a reference to the province in which the offender is incarcerated when the offender makes an application under that section.
140.4 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.
(2) The court martial may only make an order under subsection (1) if it is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the person, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.
(3) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.
(3.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
(4) For greater certainty, the paramount principles that are to guide the court martial under this section are denunciation and specific or general deterrence, with rehabilitation of the person, in all cases, being subordinate to those paramount principles.
Clause 19: Existing text of subsection 142(2):
(2) If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.
Clause 20: New.
Clause 21: (1) Existing text of subsection 147.1(1):
147.1 (1) Where a person is convicted by a court martial of an offence
(a) in the commission of which violence against a person was used, threatened or attempted,
(b) that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance,
(c) relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or
(d) that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code,
the court martial shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court martial decides that it is so desirable, the court martial shall so order.
(2) Existing text of subsection 147.1(3):
(3) Unless the order specifies otherwise, an order made under subsection (1) against a person does not apply to prohibit the possession of any thing in the course of the person’s duties or employment as a member of the Canadian Forces.
Clause 22: Existing text of section 147.2:
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,
(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and
(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,
and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.
Clause 23: Existing text of the heading and section 148:
Sentences
148. Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.
Clause 24: Existing text of the heading and sections 150 and 151:
Ignorance of Law
150. The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.
Civil Defences
151. All rules and principles from time to time followed in the civil courts that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.
Clause 25: Relevant portion of the definition:
“designated offence” means
...
(d) an offence under this Act that is a criminal organization offence; or
Clause 26: New.
Clause 27: New.
Clause 28: Existing text of subsection 158(3):
(3) The officer or non-commissioned member in charge of a guard or a guard-room or an officer or non-commissioned member appointed for the purposes of section 156 shall receive and keep a person under arrest who is committed to his or her custody.
Clause 29: Existing text of subsection 158.6(2):
(2) A direction to release a person with or without conditions may, on application, be reviewed by
(a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or
(b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.
Clause 30: New.
Clause 31: Relevant portion of subsection 159.2:
159.2 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:
...
(b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of justice; and
(c) any other just cause has been shown, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
Clause 32: New.
Clause 33: New.
Clause 34: (1) Relevant portion of subsection 164(1):
164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:
(a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;
(2) New.
(3) Existing text of subsection 164(3):
(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.
(4) New.
Clause 35: Existing text of subsection 165(2):
(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.
Clause 36: (1) and (2) Existing text of subsections 165.1(2) and (2.1):
(2) The Director of Military Prosecutions holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.
(2.1) The Inquiry Committee is deemed to have the powers of a court martial.
Clause 37: New.
Clause 38: New.
Clause 39: Existing text of sections 165.21 and 165.22:
165.21 (1) The Governor in Council may appoint officers who are barristers or advocates of at least ten years standing at the bar of a province to be military judges.
(2) A military judge holds office during good behaviour for a term of five years but may be removed by the Governor in Council for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.
(2.1) The Inquiry Committee is deemed to have the powers of a court martial.
(3) A military judge is eligible to be re-appointed on the expiry of a first or subsequent term of office on the recommendation of a Renewal Committee established under regulations made by the Governor in Council.
(4) A military judge ceases to hold office on reaching the retirement age prescribed by the Governor in Council in regulations.
165.22 (1) The rates and conditions of issue of pay of military judges shall be prescribed by the Treasury Board in regulations.
(2) The remuneration of military judges shall be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council.
Clause 40: New.
Clause 41: Existing text of section 165.24:
165.24 The Governor in Council may designate a military judge to be the Chief Military Judge.
Clause 42: Existing text of section 165.26:
165.26 The Chief Military Judge may authorize any military judge to perform the duties and functions of the Chief Military Judge.
Clause 43: New.
Clause 44: Relevant portion of section 168:
168. None of the following persons may sit as a member of the panel of a General Court Martial:
...
(d) an officer or non-commissioned member appointed for the purposes of section 156;
Clause 45: Relevant portion of section 171:
171. None of the following persons may sit as a member of the panel of a Disciplinary Court Martial:
...
(d) an officer or non-commissioned member appointed for the purposes of section 156;
Clause 46: Existing text of subsection 179(1):
179. (1) A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.
Clause 47: Existing text of the heading and section 180:
Admission to Courts Martial
180. (1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.
(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
Clause 48: Existing text of section 181:
181. (1) Subject to this Act, the rules of evidence at trials by court martial shall be such as are established by regulations made by the Governor in Council.
(2) No regulation made under this section is effective until it has been published in the Canada Gazette and every such regulation shall be laid before Parliament within fifteen days after it is made or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session.
Clause 49: Existing text of subsection 184(3):
(3) Where, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of justice, appear and give evidence before the court martial and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.
Clause 50: Existing text of section 187:
187. At any time after a General Court Martial or Disciplinary Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside over the court martial may, on application,
(a) hear and determine any question, matter or objection for which the presence of the panel of the court martial is not required; and
(b) 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.
Clause 51: New.
Clause 52: Existing text of subsection 192(2):
(2) The decisions of the panel of a General Court Martial or a Disciplinary Court Martial are determined by the vote of a majority of its members.
Clause 53: New.
Clause 54: New.
Clause 55: Relevant portion of the definition:
“peace officer” means
...
(b) an officer or a non-commissioned member of the Canadian Forces who is appointed for the purpose of section 156 or employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.
Clause 56: Relevant portion of subsection 196.12(1):
196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of justice to do so and that there are reasonable grounds to believe
Clause 57: (1) Relevant portion of subsection 196.14(1):
196.14 (1) Subject to section 196.16, if a person is found guilty of a designated offence, the court martial
...
(b) may, in the case of a secondary designated offence, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
(2) Existing text of subsection 196.14(2):
(2) The court martial is not required to make an order under paragraph (1)(a) if it is satisfied that the person has established that, were the order made, the impact on the privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
Clause 58: Existing text of subsection 196.15(1):
196.15 (1) Subject to section 196.16, if a person is found guilty of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Clause 59: Existing text of subsection 202.12(1.1):
(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.
Clause 60: (1) Relevant portion of subsection 202.121(7):
(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied
...
(c) that a stay is in the interests of the proper administration of justice.
(2) and (3) Relevant portion of subsection 202.121(8):
(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:
...
(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;
Clause 61: New.
Clause 62: (1) Relevant portion of subsection 202.23(2):
(2) An officer, a non-commissioned member appointed for the purposes of section 156, or any other peace officer within the meaning of the Criminal Code, may arrest an accused person without a warrant if they have reasonable grounds to believe that the accused person
(2) Existing text of subsection 202.23(2.1):
(2.1) An officer, a non-commissioned member or another peace officer who makes an arrest under subsection (2) may, as soon as possible, release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.
(3) Relevant portion of subsection 202.23(2.2):
(2.2) The officer, non-commissioned member or other peace officer shall not release the accused person if they believe on reasonable grounds
Clause 63: Existing text of subsection 202.25(1):
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, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.
Clause 64: New.
Clause 65: Existing text of the heading:
Division 8
Clause 66: Existing text of subsection 204(1):
204. (1) Subject to subsection (3) and sections 215 to 218, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.
Clause 67: Existing text of section 215:
215. Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment.
Clause 68: Existing text of subsections 216(1) and (2):
216. (1) In this section and sections 217 and 218, “suspending authority” means any authority prescribed to be a suspending authority by the Governor in Council in regulations.
(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment.
Clause 69: Existing text of subsection 217(1):
217. (1) Where a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority and if on the review it appears to the suspending authority that the conduct of the offender, since the punishment was suspended, has been such as to justify a remission of the punishment, the suspending authority shall remit it.
Clause 70: Existing text of section 218:
218. (1) A suspending authority may, at any time while a punishment is suspended, direct the authority empowered to do so to commit the offender and, after the date of the committal order, that punishment ceases to be suspended.
(2) Where a punishment that has been suspended under subsection 215(1) is put into execution, the term of the punishment shall be deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.
Clause 71: New.
Clause 72: Relevant portion of section 230:
230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
Clause 73: Relevant portion of section 230.1:
230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
Clause 74: Existing text of subsection 249.18(2):
(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years.
Clause 75: Existing text of subsection 249.21(1):
249.21 (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.
Clause 76: New.
Clause 77: Existing text of subsection 249.25(1):
249.25 (1) Where a person is convicted of an offence under the Code of Service Discipline, the service tribunal shall 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 service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.
Clause 78: New.
Clause 79: Existing text of the definitions:
“military police” means the officers and non-commissioned members appointed under regulations for the purposes of section 156.
“Provost Marshal” means the Canadian Forces Provost Marshal.
Clause 80: (1) New.
(2) Existing text of subsection 250.1(11):
(11) Every member shall, before commencing the duties of office, take the following oath of office:
I, ...................., 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.)
Clause 81: (1) Existing text of subsection 250.18(2):
(2) A conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.
(2) New.
Clause 82: (1) Existing text of section 250.19:
250.19 (1) Any member of the military police who conducts or supervises a military police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person under this Division.
(2) For the purposes of this section, improper interference with an investigation includes intimidation and abuse of authority.
(2) New.
Clause 83: Existing text of section 250.2:
250.2 No complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time.
Clause 84: Relevant portion of subsection 250.21(2):
(2) The person who receives a complaint shall
...
(c) ensure that notice of the complaint is sent as soon as practicable
...
(ii) in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and
(iii) in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.
Clause 85: Existing text of section 250.22:
250.22 As soon as practicable after receiving or being notified of a conduct complaint, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.
Clause 86: Existing text of subsection 250.24(2):
(2) The Chairperson shall send a notice in writing of the withdrawal to the Provost Marshal and the person who was the subject of the complaint.
Clause 87: Existing text of section 250.25:
250.25 The Provost Marshal shall establish and maintain a record of all complaints received under this Division and, on request, make available any information contained in that record to the Complaints Commission.
Clause 88: Existing text of subsection 250.26(2):
(2) If a conduct complaint is about the conduct of the Provost Marshal, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.
Clause 89: New.
Clause 90: (1) Existing text of subsection 250.27(1):
250.27 (1) On receiving or being notified of a conduct complaint, the Provost Marshal shall consider whether it can be disposed of informally and, with the consent of the complainant and the person who is the subject of the complaint, the Provost Marshal may attempt to resolve it informally.
(2) Existing text of subsection 250.27(3):
(3) No answer given or statement made by the complainant or the person who is the subject of the complaint in the course of attempting to resolve a complaint informally may be used in any disciplinary, criminal, civil or administrative proceedings, other than a hearing or proceeding in respect of an allegation that, with intent to mislead, the complainant or the person who is the subject of the complaint gave an answer or made a statement knowing it to be false.
(3) Relevant portion of subsection 250.27(5):
(5) If a direction is made under subsection (4), the Provost Marshal shall send to the complainant and the person who is the subject of the complaint a notice in writing setting out
...
(b) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.
(4) Existing text of subsection 250.27(6):
(6) If a conduct complaint is resolved informally,
(a) the details of its resolution must be set out in writing;
(b) the complainant and the person who is the subject of the complaint must give their written agreement to the resolution of the complaint; and
(c) the Provost Marshal must notify the Chairperson of the resolution of the complaint.
Clause 91: Relevant portion of subsection 250.28(3):
(3) If a direction is made under subsection (2), the Provost Marshal shall send to the complainant and, if the person who is the subject of the complaint was notified of the complaint under section 250.22, to that person, a notice in writing setting out
...
(b) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.
Clause 92: (1) and (2) Relevant portion of section 250.29:
250.29 On the completion of an investigation into a conduct complaint, the Provost Marshal shall send to the complainant, the person who is the subject of the complaint and the Chairperson a report setting out
...
(d) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the disposition of the complaint.
Clause 93: Existing text of subsection 250.3(1):
250.3 (1) Within sixty days after receiving or being notified of a conduct complaint, the Provost Marshal shall, if the complaint has not been resolved or disposed of before that time, and then each thirty days afterwards until the complaint is dealt with, send to the following persons a report on the status of the complaint:
(a) the complainant;
(b) the person who is the subject of the complaint; and
(c) the Chairperson.
Clause 94: Existing text of section 250.31:
250.31 (1) A complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may refer the complaint in writing to the Complaints Commission for review.
(2) If a complainant refers a complaint to the Complaints Commission under subsection (1),
(a) the Chairperson shall send to the Provost Marshal a copy of the complaint; and
(b) the Provost Marshal shall provide the Chairperson with a copy of the notice sent under subsection 250.27(5) or 250.28(3), or of the report sent under section 250.29, in respect of the complaint and all information and materials relevant to the complaint.
Clause 95: Existing text of subsection 250.35(3):
(3) If the Chairperson makes a direction, the Chairperson shall send to the complainant, the person who is the subject of the complaint, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a notice in writing setting out the direction and the reasons why it was made.
Clause 96: Relevant portion of section 250.36:
250.36 On the completion of an investigation into an interference complaint, the Chairperson shall prepare and send a report setting out a summary of the complaint and the Chairperson’s findings and recommendations to
...
(b) the Chief of the Defence Staff, in the case of a complaint against an officer or a non-commissioned member;
(c) the Deputy Minister, in the case of a complaint against a senior official of the Department;
Clause 97: (1) Existing text of subsection 250.38(1):
250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.
(2) Existing text of subsection 250.38(3):
(3) If the Chairperson decides to cause an investigation to be held, the Chairperson shall 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.
Clause 98: Existing text of subsection 250.4(1):
250.4 (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.
Clause 99: Relevant portion of subsection 250.41(1):
250.41 (1) When conducting a hearing, the Complaints Commission has, in relation to the complaint before it, power
Clause 100: (1) and (2) Existing text of section 250.43:
250.43 (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.
(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.
(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.
Clause 101: Existing text of section 250.44:
250.44 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.
Clause 102: Existing text of subsection 250.49(2):
(2) If the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.
Clause 103: Existing text of section 250.5:
250.5 (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.
(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.
Clause 104: Existing text of subsection 250.53(2):
(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.
Clause 105: Existing text of section 251.2:
251.2 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 Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military Police Complaints Commission, a board of inquiry or a commissioner taking evidence under this Act 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.
Clause 106: Existing text of the heading:
Limitation of Civil Liabilities
Clause 107: Existing text of subsection 269(1):
269. (1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.
Clause 108: Existing text of section 272:
272. The dependants, as defined by regulation, of members of the Canadian Forces on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by officers and non-commissioned members appointed as described in section 156 and may be handed over to the appropriate authorities of that place.
Clause 109: New.
Clause 110: Existing text of subsection 273.63(1):
273.63 (1) The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.
Clause 111: Existing text of subsection 299(2):
(2) A certificate signed by the Judge Advocate General, or such person as the Judge Advocate General may appoint for that purpose, that an officer or non-commissioned member was convicted under this Act of desertion or absence without leave or had been continuously absent without leave for six months or more, and setting out the date of commencement and the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence that the officer or non-commissioned member was a deserter or absentee without leave during the period referred to in the certificate.
Clause 112: Relevant portion of section 302:
302. Every person is guilty of an offence and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or to both, where the person
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(d) prints observations or uses words likely to influence improperly a board of inquiry, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), a service tribunal, a commissioner taking evidence under this Act or the Military Police Complaints Commission or any witness at any proceeding under Part II, III or IV, or to bring a proceeding under any of those Parts into disrepute; or
Clause 113: New.
An Act to amend the National Defence Act and to make consequential amendments to other Acts
Clause 123: Existing text of section 96:
96. (1) The Minister shall cause an independent review of the provisions and operation of this Act to be undertaken from time to time.
(2) The Minister shall cause the report on the review conducted under subsection (1) to be laid before each House of Parliament within five years after the day on which this Act is assented to, and within every five year period following the tabling of a report under this subsection.
Public Safety Act, 2002
Clause 124: Existing text of section 77:
77. The Act is amended by adding the following after section 165.27:
Reserve Military Judges Panel
165.28 There is established a panel, called the Reserve Military Judges Panel (in this section and sections 165.29 to 165.32 referred to as the “Panel”), to which the Governor in Council may name officers of the reserve force who have previously performed
(a) the duties of a military judge under this Act; or
(b) before September 1, 1999, the duties of a president of a Standing Court Martial, a presiding judge of a Special General Court Martial or a judge advocate of a General Court Martial or Disciplinary Court Martial.
165.29 (1) The Governor in Council may remove from the Panel for cause the name of any officer on the recommendation of an Inquiry Committee referred to in section 165.21.
(2) The name of an officer shall be removed from the Panel on the officer’s
(a) reaching the retirement age prescribed by regulations made by the Governor in Council; or
(b) voluntarily ceasing to be an officer of the reserve force.
(3) An officer may give notice in writing to the Chief Military Judge that the officer wishes their name to be removed from the Panel. The removal takes effect either on the day the notice is received by the Chief Military Judge or on a later day if one is specified in the notice.
165.3 An officer named to the Panel shall not engage in any business or professional activity that is incompatible with the duties that he or she may be required to perform under this Act.
165.31 (1) The Chief Military Judge may select any officer named to the Panel to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.
(2) An officer who is performing duties pursuant to subsection (1) has, while performing those duties, all the powers and duties of a military judge.
(3) The Chief Military Judge may request any officer named to the Panel to undergo any training that may be specified by the Chief Military Judge.
165.32 An officer named to the Panel who is performing duties or undergoing training under section 165.31 shall be paid remuneration at the daily rate of 1/251 of the annual rate of pay of a military judge other than the Chief Military Judge.
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