Bill C-45
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2nd Session, 39th Parliament,
56-57 Elizabeth II, 2007-2008
house of commons of canada
BILL C-45
An Act to amend the National Defence Act and to make consequential amendments to other Acts
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
1. (1) The definition “Provost Marshal” in subsection 2(1) of the National Defence Act, as enacted by section 1 of chapter 5 of the Statutes of Canada, 2007, is repealed.
1998, c. 35, s. 1(4)
(2) The definition “military judge” in subsection 2(1) of the Act is replaced by the following:
“military judge”
« juge militaire »
« juge militaire »
“military judge” includes a reserve force military judge;
(3) 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 made 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, have retroactive effect. 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 griev- ance 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).
1998, c. 35, s. 7
9. 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.)
R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)
10. 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
11. 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
12. 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.
13. 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
14. 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, 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
15. 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
16. 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
17. Sections 140.3 and 140.4 of the Act are repealed.
1998, c. 35, s. 38
18. 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.
19. 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
20. (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, threat- ened 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 any of sections 5 to 7 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
21. 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
22. 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
23. The heading before section 150 and sections 150 and 151 of the Act are repealed.
1998, c. 35, s. 40
24. 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;
25. 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.
1998, c. 35, s. 41
26. (1) The portion of section 156 of the Act before paragraph (a) is replaced by the following:
Powers of military police
156. (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may
(2) Section 156 of the Act is amended by adding the following after subsection (1):
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
27. 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
28. 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.
29. 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
30. 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.
31. 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.
32. 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
33. (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
34. 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
35. (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.
36. (1) Section 165.12 of the Act is amended by adding the following after subsection (1):
Irregularity, informality or defect
(1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.
1998, c. 35, s. 42
(2) Subsection 165.12(2) of the French version of the Act is replaced by the following:
Retrait de l’accusation
(2) Le directeur des poursuites militaires peut retirer une mise en accusation déjà prononcée; toutefois, le retrait de la mise en accusation après le début du procès en cour martiale est subordonné à l’autorisation de celle-ci.
(3) 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.
37. 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
38. Sections 165.21 and 165.22 of the Act are replaced by the following:
Appointment
165.21 (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province, and who has been an officer for at least 10 years, to be a military judge.
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 any officer of the reserve force who has been an officer for at least 10 years and who
(a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;
(b) is a sitting or retired judge of a superior or provincial court;
(c) has been a military judge;
(d) has presided at a Standing Court Martial or a Special General Court Martial; or
(e) has been a judge advocate at a court martial.
Reserve force military judge
(2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.
Oath
(3) 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 Subject to any Act of Parliament or of the legislature of a province respecting remuneration or retirement benefits that applies to a sitting or retired judge referred to in paragraph 165.22(1)(b), a reserve force military judge shall, while performing his or her duties or undergoing training, be issued pay at a daily rate prescribed in regulations.
Duties and Immunity of Military Judges
39. 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
40. Section 165.24 of the Act is replaced by the following:
Chief Military Judge
165.24 (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.
Rank
(2) The Chief Military Judge holds a rank that is not less than colonel.
1998, c. 35, s. 42
41. 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 exercise and perform any of the powers, duties and functions of the Chief Military Judge.
42. The Act is amended by adding the following after section 165.27:
Deputy Chief Military Judge
165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.
Power, duties and functions
165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge not otherwise authorized to be exercised or performed by a military judge under section 165.26.
Rules of practice and procedure
165.3 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
165.31 (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
165.32 (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 appli- cable 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
165.33 (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
165.34 (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, 2011, and on every September 1 of every fourth year after 2011, 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
165.35 (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 165.34(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
165.36 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
165.37 (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.
43. The Act is amended by adding the following after section 165.37:
Costs payable
165.38 If the military judges are represented at an inquiry of the Military Judges Compensation Committee, the costs of representation shall be paid in the amount and manner, and according to the terms and conditions, prescribed by regulations made by the Governor in Council.
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 the 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
2005, c. 22, s. 48
57. 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
58. (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;
59. 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 has 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
60. (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
61. Subsection 202.25(1) of the Act is replaced by the following:
Powers of Review Boards 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.
62. The Act is amended by adding the following after section 202.26:
Division 7.1
Explanatory Notes
National Defence Act
Clause 1: (1) and (2) Existing text of the definitions:
“military judge” means a military judge appointed under subsection 165.21(1);
“Provost Marshal” means the Canadian Forces Provost Marshal;
(3) 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: 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 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 11: 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 12: 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 13: New.
Clause 14: 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 15: 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 16: 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 17: 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 18: 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 19: New.
Clause 20: (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 21: 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 22: 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 23: 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 24: Relevant portion of the definition:
“designated offence” means
...
(d) an offence under this Act that is a criminal organization offence; or
Clause 25: New.
Clause 26: (1) Relevant portion of section 156:
156. Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may
(2) New.
Clause 27: 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 28: 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 29: New.
Clause 30: Relevant portion of section 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 31: New.
Clause 32: New.
Clause 33: (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 34: 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 35: (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 36: (1) New.
(2) Existing text of subsection 165.12(2):
(2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.
(3) New.
Clause 37: New.
Clause 38: 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 39: New.
Clause 40: Existing text of section 165.24:
165.24 The Governor in Council may designate a military judge to be the Chief Military Judge.
Clause 41: 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 42: New.
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: 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 58: (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 59: New.
Clause 60: (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 61: 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 62: New.