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Bill C-77

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First Session, Forty-second Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-77
An Act to amend the National Defence Act and to make related and consequential amendments to other Acts
AS PASSED
BY THE HOUSE OF COMMONS
February 28, 2019
90838


SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system.
It adds a new Division, entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have a right to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.
It amends Part III of that Act to, among other things,
(a)specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary hearings;
(b)protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c)specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d)make testimonial aids more accessible to vulnerable witnesses;
(e)allow witnesses to testify using a pseudonym in appropriate cases;
(f)on application, make publication bans for victims under the age of 18 mandatory;
(g)in certain circumstances, require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor;
(h)provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i)provide for different ways of presenting victim impact statements;
(j)allow for military impact statements and community impact statements to be considered for all service offences;
(k)provide, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;
(l)provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;
(m)provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;
(n)provide for a six-month limitation period in respect of summary hearings; and
(o)provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.
Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.
Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 42nd Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-77
An Act to amend the National Defence Act and to make related and 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

1The heading before section 2 of the French version of the National Defence Act is replaced by the following:
Définitions et interprétation
2(1)The definitions service tribunal and summary trial in subsection 2(1) of the Act are repealed.
(2)The definition infraction d’ordre militaire in subsection 2(1) of the French version of the Act is replaced by the following:
infraction d’ordre militaire  Infraction — à la présente loi, au Code criminel ou à une autre loi fédérale — commise par un justiciable du code de discipline militaire. (service offence)
(3)Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
military justice means all aspects of the application of the Code of Service Discipline; (justice militaire)
military justice system participant means a person who plays a role in the administration of military justice, including
(a)the Minister,
(b)the Judge Advocate General,
(c)an officer and non-commissioned member who acts under the supervision of the Judge Advocate General,
(d)a prosecutor and counsel for an accused person,
(e)a military judge,
(f)a superior commander, a commanding officer and a delegated officer, as defined in section 162.3,
(g)a custody review officer, as defined in section 153,
(h)a member of a panel of a General Court Martial and an officer and non-commissioned member who has been appointed to be a member of a such a panel,
(i)an officer and non-commissioned member who is appointed by a commanding officer for the purpose of supporting a court martial,
(j)an officer and non-commissioned member who is authorized to lay or refer a charge,
(k)a prospective witness, a witness who has been summoned to appear and a witness who has testified,
(l)an officer and non-commissioned member referred to in paragraph (g) of the definition peace officer in section 2 of the Criminal Code,
(m)a commanding officer of a service prison or detention barrack and a person who acts under the supervision of such a commanding officer, and
(n)a person who acts under the supervision of the Chief Military Judge or the Court Martial Administrator; (personne associée au système de justice militaire)
service infraction means a service infraction created by regulations made by the Governor in Council; (manquement d’ordre militaire)
summary hearing means a hearing conducted under section 163; (audience sommaire)
victim means an individual against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III, an individual who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any person. (victime)
(4)Section 2 of the Act is amended by adding the following after subsection (1):
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III:
(a)if the victim is dead or is incapable, other than for operational reasons, of acting on their own behalf,
(i)the victim’s spouse or the individual who was at the time of the victim’s death their spouse,
(ii)the individual who is, or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year,
(iii)a relative or dependant of the victim,
(iv)an individual who has in law or fact custody of, or is responsible for the care or support of, the victim, and
(v)an individual who has in law or fact custody of, or is responsible for the care or support of, a dependant of the victim; and
(b)if, for operational reasons, the victim is unable to act on their own behalf and has requested the appointment of a member of the Canadian Forces to act on their behalf, a member appointed by the Chief of the Defence Staff or any officer authorized by the Chief of Defence Staff.
Exception — not a victim
(1.2)An individual is not a victim in relation to a service offence, or entitled to exercise a victim’s rights under Division 1.1 of Part III, if the individual is charged with the offence, found guilty of the offence or found unfit to stand trial or not responsible on account of mental disorder in respect of the offence.
R.‍S.‍, c. 31 (1st Supp.‍), s. 60 (Sch. I, s. 13)
3Paragraph 30(4)‍(a) of the Act is replaced by the following:
(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 court martial or any civil court, and
4The Act is amended by adding the following after the heading of Part III:
Purpose
Purpose
55(1)The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.
Clarification
(2)For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.
1998, c. 35, s. 20
5(1)Paragraphs 66(1)‍(a) and (b) of the Act are replaced by the following:
(a)has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or
(b)has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence.
R.‍S.‍, c. 31 (1st Supp.‍), s. 45; 1998, c. 35, s. 20
(2)Subsections 66(2) and (3) of the Act are replaced by the following:
Exception
(2)Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.
Effect of other offences admitted at previous trial
(3)A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.
6The portion of section 70 of the Act before paragraph (a) is replaced by the following:
Offences not triable by courts martial
70A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:
7The Act is amended by adding the following after section 71:
Division 1.1
Declaration of Victims Rights
Interpretation
Definition of military justice system
71.01For the purposes of this Division, military justice system means
(a)the investigation of service offences, the processes for the laying and referral of charges of service offences and their prosecution;
(b)the process for the carrying out of punishments in relation to service offences, except in respect of any service prisoners and service convicts who have been committed to a penitentiary or civil prison; and
(c)the proceedings of a court martial or a Review Board, as defined in section 197, in respect of an accused person who is found unfit to stand trial or not responsible on account of mental disorder.
Rights
Information
General information
71.02Every victim has the right, on request, to information about
(a)the military justice system and the role of victims in it;
(b)the services and programs available to them as a victim; and
(c)their right to file a complaint for an infringement or denial of any of their rights under this Division.
Investigation and proceedings
71.03Every victim has the right, on request, to information about
(a)the status and outcome of the investigation into the service offence; and
(b)the location of proceedings in relation to the offence, when they will take place and their progress and outcome.
Information about offender or accused
71.04(1)Every victim has the right, on request, to information about
(a)the offender while they are in a service prison or detention barrack;
(b)the release of the offender from a service prison or detention barrack;
(c)hearings held for the purpose of making dispositions under any of sections 201, 202 and 202.16 and the dispositions made at those hearings; and
(d)hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.
Disclosure of information
(2)Information may be disclosed for the purposes of paragraphs (1)‍(a) and (b) subject to and in accordance with regulations made by the Governor in Council.
Protection
Security
71.05Every victim has the right to have their security considered by the appropriate authorities in the military justice system.
Protection from intimidation and retaliation
71.06Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the military justice system to protect the victim from intimidation and retaliation.
Privacy
71.07Every victim has the right to have their privacy considered by the appropriate authorities in the military justice system.
Identity protection
71.08Every victim has the right to request that their identity be protected if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence.
Testimonial aids
71.09Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the service offence.
Participation
Views to be considered
71.1Every victim has the right to convey their views about decisions to be made by appropriate authorities in the military justice system that affect the victim’s rights under this Division and to have those views considered.
Victim impact statement
71.11Every victim has the right to present a victim impact statement to the appropriate authorities in the military justice system and to have it considered.
Restitution
Restitution order
71.12Every victim has the right to have the court martial consider making a restitution order against the offender.
Enforcement
71.13Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.
General Provisions
Application
71.14(1)This Division applies in respect of a victim of a service offence in their interactions with the military justice system
(a)while the offence is being investigated or prosecuted or the charge is being referred;
(b)while the offender is serving a punishment in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a penitentiary or civil prison; and
(c)while the accused person is, in relation to the offence, under the jurisdiction of a court martial or a Review Board, as defined in section 197, if they are found unfit to stand trial or not responsible on account of mental disorder.
Reporting of offence
(2)For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the military justice system, the investigation of the offence is deemed to begin at the time of the reporting.
Exercise of rights
71.15(1)The rights of victims under this Division are to be exercised through the mechanisms provided by law.
Connection to Canada
(2)A victim is entitled to exercise their rights under this Division only if
(a)they are present in Canada; or
(b)they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Victim’s liaison officer
71.16(1)Unless he or she is of the opinion that it is not possible to do so for operational reasons, a commanding officer shall, at the request of the victim, appoint an officer or non-commissioned member, who satisfies the conditions established in regulations made by the Governor in Council, to be a liaison officer to assist the victim as provided for in subsection (3). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim to be their liaison officer.
Absence or incapacity
(2)In the event of the absence or incapacity of the victim’s liaison officer, a commanding officer shall appoint another officer or non-commissioned member to replace the liaison officer during that absence or incapacity, unless it is not possible to do so for operational reasons.
Role of victim’s liaison officer
(3)Assistance by a victim’s liaison officer consists of
(a)explaining to the victim the manner in which service offences are charged, dealt with and tried under the Code of Service Discipline; and
(b)obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under this Division.
Interpretation of this Division
71.17This Division is to be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to
(a)interfere with the proper administration of military justice, including
(i)by causing interference with investigative discretion or by causing excessive delay in, compromising or hindering the investigation of any service offence,
(ii)by causing interference with charge laying discretion in respect of any service offence, or by causing excessive delay in, compromising or hindering the laying or referral of a charge in respect of any service offence, and
(iii)by causing interference with prosecutorial discretion or by causing excessive delay in, compromising or hindering the prosecution of any service offence;
(b)interfere with ministerial discretion in respect of any service offence;
(c)interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community;
(d)endanger the life or safety of any individual; or
(e)cause injury to international relations, national defence or national security.
Interpretation of other Acts, regulations, etc.
71.18To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Division comes into force is to be construed and applied in a manner that is compatible with the rights provided for under this Division.
Primacy in event of inconsistency
71.19(1)If, after the application of sections 71.17 and 71.18, there is any inconsistency between any provision of this Division and any provision of any Act, order, rule or regulation referred to in section 71.18, the provision of this Division prevails to the extent of the inconsistency.
Exception — Acts, regulations, etc.
(2)Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act, the Privacy Act and the Canadian Victims Bill of Rights and in respect of any orders, rules and regulations made under any of those Acts.
No adverse inference
71.2No adverse inference is to be drawn against a person who is charged with a service offence from the fact that an individual has been identified as a victim in relation to the service offence.
Entering or remaining in Canada
71.21Nothing in this Division is to be construed so as to permit any individual to
(a)enter Canada or remain in Canada beyond the end of the period for which they are authorized to so remain;
(b)delay any removal proceedings or prevent the enforcement of any removal order; or
(c)delay any extradition proceedings or prevent the extradition of any person to or from Canada.
Remedies
Complaint
71.22(1)Every victim who is of the opinion that any of their rights under this Division have been infringed or denied by an authority within the military justice system has the right to file a complaint in accordance with regulations made by the Governor in Council.
Complaints mechanism
(2)Regulations made by the Governor in Council may, among other things, provide for
(a)the review of complaints involving alleged infringements or denials of rights under this Division;
(b)the power to make recommendations to remedy such infringements and denials; and
(c)the obligation to notify victims of the result of those reviews and of any recommendations that were made.
Status
71.23Nothing in this Division is to be construed as granting to, or removing from, any victim, any individual acting on behalf of a victim or any victim’s liaison officer the status of a party, intervenor or observer in any proceedings.
No cause of action
71.24No cause of action or right to damages arises from an infringement or denial of a right under this Division. For greater certainty, nothing in this section is to be construed as affecting any other cause of action or right to damages.
No appeal
71.25No appeal lies from any decision or order solely on the grounds that a right under this Division has been infringed or denied.
2013, c. 24, s. 17
8Subsection 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 a court martial, a military judge, an officer conducting a summary hearing, the Grievances Committee, 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.
1998, c. 35, s. 32
9Section 118.1 of the Act is replaced by the following:
Failure to appear or attend
118.1Every person who, being duly summoned or ordered to appear before a court martial or a military judge, as an accused, or before an officer conducting a summary hearing, as a person charged with having committed a service infraction, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
10(1)The portion of subsection 130(1) of the French version of the Act after paragraph (b) is replaced by the following:
Quiconque en est condamné encourt la peine prévue au paragraphe (2).
(2)The portion of subsection 130(2) of the Act before paragraph (a) is replaced by the following:
Punishment
(2)Subject to subsection (3), if a court martial convicts a person under subsection (1), it shall,
1992, c. 16, s. 1; 2013, c. 24, s. 18(E)
11Subsections 137(2) and (3) of the Act are repealed.
12Section 138 of the Act is replaced by the following:
Special finding of guilty
138A court martial may, instead of making a finding of not guilty, make a special finding of guilty if it concludes that
(a)the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged; and
(b)the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in their defence.
If the court martial makes a special finding of guilty, it shall state the differences between the facts proved and the facts alleged in the statement of particulars.
R.‍S.‍, c. 31 (1st Supp.‍), s. 60 (Sch. I, s. 40); 1998, c. 35, par. 92(c)
13Subsection 141(1) of the English version of the Act is replaced by the following:
Dismissal with disgrace
141(1)If a court martial imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, it may, in addition, despite any other provision of this Division, impose a punishment of imprisonment for less than two years.
1998, c. 35, s. 39
14Subsection 145(3) of the Act is replaced by the following:
Variation of terms of payment
(3)The terms of payment of a fine may be varied by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.
15Section 147 of the Act is repealed.
16The Act is amended by adding the following after section 147.5:
Order to Abstain from Communicating
If injury or damage feared
147.6(1)An information may, in accordance with regulations made by the Governor in Council, be laid before a military judge by or on behalf of any victim who fears on reasonable grounds that a person who is subject to the Code of Service Discipline will cause physical or emotional harm to the victim, to the victim’s spouse, to a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year, or to the victim’s child or will cause damage to the victim’s property.
Parties to appear
(2)The military judge who receives the information shall cause the parties to appear before the military judge, either in person or otherwise.
Order
(3)The military judge may, if satisfied by the evidence that there are reasonable grounds for the victim’s fears, order that the person who is subject to the Code of Service Discipline and who is referred to in the information
(a)abstain from communicating, directly or indirectly, with any of the following individuals who are specified in the order:
(i)the victim,
(ii)the victim’s spouse,
(iii)a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year,
(iv)the victim’s child;
(b)refrain from going to any place specified in the order; or
(c)comply with any other condition specified in the order that the military judge considers necessary.
Absence of military judge
(4)If, for operational reasons, no military judge is available, the information may be laid before a commanding officer and, if it is so laid, that commanding officer has all the powers of a military judge that are set out in subsection (3).
Review
(5)Every decision of a commanding officer to make or not make an order under subsection (3) must be reviewed as soon as feasible by a military judge. The military judge may, at the conclusion of the review, amend any order that was made and, if none was made, make any order under that subsection.
R.‍S.‍, c. 31 (1st Supp.‍), s. 50
17(1)The portion of subsection 157(1) of the Act before paragraph (a) is replaced by the following:
Issue of warrants
157(1)Subject to subsection (2), every commanding officer, and every officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing, may by a warrant under his or her hand authorize any person to arrest any person subject to the Code of Service Discipline who
R.‍S.‍, c. 31 (1st Supp.‍), s. 50
(2)Paragraphs 157(1)‍(a) to (c) of the English version of the Act are replaced by the following:
(a)has committed a service offence;
(b)is believed on reasonable grounds to have committed a service offence; or
(c)is charged under this Act with having committed a service offence.
R.‍S.‍, c. 31 (1st Supp.‍), s. 50
(3)The portion of subsection 157(1) of the English version of the Act after paragraph (c) is repealed.
(4)Section 157 of the Act is amended by adding the following after subsection (2):
Limitation
(2.1)An officer authorized to issue a warrant under this section shall not issue a warrant for the arrest of any person who is a member of, serving with, or attached or seconded to the same unit of the Canadian Forces as the officer.
1998, c. 35, s. 42
18(1)Paragraph 158(1)‍(d) of the Act is replaced by the following:
(d)the need to ensure that the person under arrest will appear before a court martial or civil court to be dealt with according to law;
1998, c. 35, s. 42
(2)Paragraph 158(1)‍(f) of the Act is replaced by the following:
(f)the necessity to ensure the safety and security of the person under arrest, any victim of the offence, or any other person.
19(1)Section 158.6 of the Act is amended by adding the following after subsection (1):
Consideration of victim’s safety and security
(1.1)If the custody review officer directs that the person be released, with or without conditions, the custody review officer shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.
Copy to victim
(1.2)The custody review officer shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
1998, c. 35, s. 42
(2)Subsection 158.6(3) of the Act is replaced by the following:
Powers
(3)After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction that a custody review officer may make under subsection (1). If he or she makes a direction, subsections (1.1) and (1.2) apply with any necessary modifications.
20The Act is amended by adding the following after section 158.6:
Direction — no communication
158.61If a custody review officer directs that a person be retained in custody, the custody review officer may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction except in accordance with any conditions specified in the direction that the officer considers necessary.
1998, c. 35, s. 42
21Paragraph 159.2(a) of the Act is replaced by the following:
(a)custody is necessary to ensure the person’s attendance before a court martial or civil court to be dealt with according to law;
22The Act is amended by adding the following after section 159.3:
Direction — no communication
159.31If a military judge directs that a person be retained in custody, the military judge may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the military judge considers necessary.
23Section 159.7 of the Act is renumbered as subsection 159.7(1) and is amended by adding the following:
Consideration of victim’s safety and security
(2)If the military judge directs that a person be released, with or without conditions, the military judge shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.
Copy to victim
(3)The military judge shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
1998, c. 35, s. 42
24Sections 160 to 161.1 of the Act are replaced by the following:
Definition of commanding officer
160In this Division, commanding officer, in respect of a person charged with having committed a service offence or a service infraction, means the commanding officer of the person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the person.
Laying of Charge
Laying of charge
161(1)Proceedings against a person who is alleged to have committed a service offence or a service infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.
Duty to act expeditiously
(2)If the person is retained in custody or released from custody with conditions, a charge must be laid as expeditiously as the circumstances permit.
Referral of charge — service offence
161.1(1)After a person is charged with having committed a service offence, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.
Referral of charge — service infraction
(2)After a person is charged with having committed a service infraction, the charge must be referred, in accordance with regulations made by the Governor in Council, to an officer who is a commanding officer in respect of the person.
1998, c. 35, s. 42; 2008, c. 29, ss. 4 and 5
25The heading before section 162.1 and sections 162.1 to 164.2 of the Act are replaced by the following:
Division 5
Summary Hearings
Interpretation
Definitions
162.3The following definitions apply in this Division.
commanding officer, in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. (commandant)
delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. (officier délégué)
scale of sanctions means the scale of sanctions set out in subsection 162.7. (échelle des sanctions)
superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)
Service Infractions
Summary hearing
162.4Service infractions may be dealt with only by summary hearing.
Not offence
162.5A service infraction is not an offence under this Act.
Prior trial — offence
162.6(1)If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state.
Prior summary hearing — service infraction
(2)If a summary hearing has been conducted in respect of a service infraction that a person is alleged to have committed, the person may be charged, dealt with and tried in respect of an offence arising from the same facts, regardless of whether or not the person was found to have committed the service infraction.
Answer or statement — restriction
(3)No answer given or statement made by a person at their summary hearing may be used or be receivable against them in any disciplinary, criminal or civil proceeding, other than at a hearing or proceeding in respect of an allegation that they gave the answer or made the statement knowing it to be false.
Scale of sanctions
162.7The following sanctions may be imposed in respect of a service infraction, and each is a sanction less than every sanction preceding it:
(a)reduction in rank;
(b)severe reprimand;
(c)reprimand;
(d)deprivation of pay, and of any allowance prescribed in regulations made by the Governor in Council, for not more than 18 days; and
(e)minor sanctions prescribed in regulations made by the Governor in Council.
Reduction in rank
162.8(1)The sanction of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.
Restrictions
(2)The sanction of reduction in rank is not to involve
(a)reduction to a rank lower than that to which the person who has committed a service infraction can be reduced under regulations; and
(b)in the case of a commissioned officer, reduction to a rank lower than commissioned rank.
Objectives of sanctions
162.9The imposition of sanctions is intended to achieve 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 indisciplined conduct;
(d)to deter persons from committing service infractions;
(e)to assist in rehabilitating persons who have committed service infractions;
(f)to promote a sense of responsibility in persons who have committed service infractions.
Fundamental principle
162.91Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it.
Other principles
162.92Sanctions must be imposed in accordance with the following other principles:
(a)a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that
(i)the person, in committing the service infraction, abused their rank or other position of trust or authority,
(ii)the service infraction was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, or
(iii)the commission of the service infraction resulted in harm to the conduct of a military operation or any military training;
(b)a sanction should be similar to sanctions imposed on persons for similar service infractions committed in similar circumstances; and
(c)a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces.
Consideration of indirect consequences
162.93In determining the sanction to be imposed against a person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the finding that the person committed a service infraction, or of the sanction.
Summary Hearings
Delegation
162.94A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command.
Commanding officer’s obligation
162.95A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163,
(a)conduct a summary hearing in respect of the charge;
(b)decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or
(c)refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer.
Jurisdiction
163(1)A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied:
(a)the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;
(b)having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate;
(c)there are no reasonable grounds to believe that the person charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings; and
(d)having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing.
Prohibition on conducting hearing
(2)A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she
(a)carried out or directly supervised the investigation of the service infraction;
(b)issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the service infraction; or
(c)laid the charge or caused it to be laid.
However, he or she may conduct such a hearing if, having regard to all the circumstances, it is not practicable for any other superior commander, commanding officer or delegated officer to conduct the hearing.
Sanctions imposed by superior commander
163.1(1)A superior commander who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in section 162.7.
Sanctions imposed by commanding officer
(2)A commanding officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e).
Sanctions imposed by delegated officer
(3)A delegated officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the following sanctions:
(a)a sanction referred to in paragraph 162.7(d) for not more than seven days;
(b)minor sanctions referred to in paragraph 162.7(e).
Obligation after referral
163.2A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163,
(a)conduct a summary hearing in respect of the charge;
(b)decide not to proceed with the charge if, in his or her opinion, it should not be proceeded with; or
(c)refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer.
Subsequent summary hearing proceedings not precluded
163.3A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time.
Limitation period
163.4A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed.
No territorial limitation
163.5Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada.
Review Authorities
Chief of the Defence Staff and other military authorities
163.6(1)The review authorities in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing are the Chief of the Defence Staff and any other military authorities that are prescribed by the Governor in Council in regulations.
When authorities may act
(2)A review authority in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing may act on its own initiative or on application, made in accordance with regulations made by the Governor in Council, of the person found to have committed the service infraction.
Quashing of Findings
Authority to quash
163.7(1)A review authority may quash a finding, by an officer who conducted a summary hearing, that a person has committed a service infraction.
Effect of complete quashing
(2)If a finding that a person has committed a service infraction is quashed and no other such finding was made at the summary hearing, every sanction imposed as a result of the quashed finding is also quashed and a new summary hearing may be held in relation to the service infraction as if no previous summary hearing had been held.
Effect of partial quashing
(3)In the case where more than one finding has been made that a person has committed a service infraction and a review authority quashes one or more but not all of them, if a sanction imposed is in excess of any that may be imposed in respect of the remaining findings or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.
Substitution of Findings
Substitution of invalid or unsubstantiated findings
163.8(1)A review authority may substitute a new finding for any finding that a person has committed a service infraction that was invalidly made or that cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears to the review authority that the officer who conducted the summary hearing was satisfied of the facts that establish the service infraction specified or involved in the new finding.
Effect on sanction
(2)If a new finding is substituted and a sanction imposed in respect of the original finding is in excess of a sanction that may be imposed in respect of the new finding or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.
Substitution of Sanctions
Authority to substitute
163.9(1)A review authority may substitute for any invalid sanction imposed by an officer who conducted a summary hearing any new sanction or sanctions that it considers appropriate.
Condition applicable to new sanction
(2)If a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than that other sanction.
Commutation, Mitigation and Remission of Sanctions
Authority to commute, mitigate or remit sanctions
163.91(1)A review authority may commute, mitigate or remit any or all of the sanctions imposed by an officer who conducted a summary hearing.
Definitions
(2)The following definitions apply in subsection (1).
commute means to replace a sanction with another sanction that is lower in the scale of sanctions. (commuer)
mitigate means to impose a lesser amount of the same sanction. (mitiger)
remit means to exempt a person from the requirement to undergo the whole or any part of a sanction. (remettre)
1998, c. 35, s. 42
26Section 165.13 of the Act is replaced by the following:
Reasons for not proceeding
165.13If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.
1998, c. 35, ss. 43(1)‍(E) and (2); 2001, c. 41, s. 101
27Section 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)Unless this Act provides otherwise, court martial proceedings and proceedings before a military judge under any of sections 147.6, 159, 187 and 248.81 must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.
Exception
(2)A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judges’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.
Factors to be considered
(3)In determining whether making the order is in the interest of the proper administration of military justice, the military judge shall consider
(a)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(b)the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c)the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;
(d)whether any witness needs the order for their security or to protect them from intimidation or retaliation;
(e)the protection of military justice system participants who are involved in the proceedings;
(f)whether effective alternatives to the making of the order are available in the circumstances;
(g)the salutary and deleterious effects of the order; and
(h)any other factor that the military judge considers relevant.
No adverse inference
(4)No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Reasons to be stated
(5)If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.
Witnesses
(6)Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.
Clearing court
(7)For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.
Production of certain records
Definition of record
180.01For the purposes of sections 180.02 to 180.08, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.
Production of record to accused
180.02(1)Except in accordance with sections 180.03 to 180.08, no record relating to a complainant or a witness shall be produced to an accused person in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a)an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code;
(b)any offence under the Criminal Code, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involved a violation of the complainant’s sexual integrity and would be an offence referred to in paragraph (a) if it had occurred on or after that day.
Application of provisions
(2)Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record relating to the complainant or a witness that is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness, as the case may be, has expressly waived the application of those sections.
Duty of prosecutor to give notice
(3)In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that the record is in the prosecutor’s possession or control, but, in doing so, the prosecutor shall not disclose the record’s contents.
Application for production
180.03(1)An accused person who seeks the production of a record may make an application for its production to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial.
Form and content of application
(2)The application must be made in writing and set out
(a)particulars identifying the record that the accused person seeks to have produced and the name of the person who has possession or control of the record; and
(b)the grounds on which the accused person relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.
Insufficient grounds
(3)Any one or more of the following assertions by the accused person are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a)the record exists;
(b)the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c)the record relates to the incident that is the subject matter of the proceedings;
(d)the record may disclose a prior inconsistent statement of the complainant or witness;
(e)the record may relate to the credibility of the complainant or witness;
(f)the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g)the record may reveal allegations of sexual abuse of the complainant by a person other than the accused person;
(h)the record relates to the sexual activity of the complainant with any person, including the accused person;
(i)the record relates to the presence or absence of a recent complaint;
(j)the record relates to the complainant’s sexual reputation;
(k)the record was made close in time to the complaint or to the activity that forms the subject matter of the charge against the accused person.
Service of application
(4)The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused person, the record relates, at least 14 days before the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice.
Service on other persons
(5)The military judge may, at any time, order that the application be served on any person to whom he or she considers the record may relate.
Hearing in private
180.04(1)The military judge shall hold a hearing in private to determine whether to order the person who has possession or control of the record to produce it to the military judge for review.
Persons who may appear at hearing
(2)The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.
Right to counsel
(3)The military judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.
Costs
(4)No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.
Order to produce record for review
180.05(1)The military judge may order the person who has possession or control of the record to produce the record or a part of the record to the military judge for review if, after the hearing, the military judge is satisfied that
(a)the application was made in accordance with subsections 180.03(2) to (5);
(b)the accused person has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
(c)the production of the record is necessary in the interests of military justice.
Factors to be considered
(2)In determining whether to make the order, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the military judge shall take the following factors into account:
(a)the extent to which the record is necessary for the accused person to make a full answer and defence;
(b)the probative value of the record;
(c)the nature and extent of the reasonable expectation of privacy with respect to the record;
(d)whether production of the record is based on a discriminatory belief or bias;
(e)the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f)society’s interest in encouraging the reporting of sexual offences;
(g)society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h)the effect of the determination on the integrity of the trial process.
Review of record by military judge
180.06(1)If the military judge has ordered the production of the record or a part of the record for review, the military judge shall review it in the absence of the parties to determine whether the record or the part of the record should be produced to the accused person.
Hearing in private
(2)The military judge may hold a hearing in private if he or she considers that it will assist in making the determination.
Provisions re hearing
(3)Subsections 180.04(2) to (4) apply in the case of a hearing held under subsection (2).
Order to produce
180.07(1)If the military judge is satisfied that the record or a part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and that its production is necessary in the interests of military justice, the military judge may order that the record or the part of the record, as the case may be, be produced to the accused person, subject to any conditions that may be imposed under subsection (3).
Factors to be considered
(2)In determining whether to make the order, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, the military judge shall take the factors specified in paragraphs 180.05(2)‍(a) to (h) into account.
Conditions on production
(3)The military judge who orders the production of the record or a part of the record to the accused person, may impose conditions on the production to protect the interests of military justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including the following conditions:
(a)the record is to be edited as directed by the military judge;
(b)a copy of the record, rather than the original, is to be produced;
(c)the accused person and counsel for the accused person are not to disclose the contents of the record to any other person, except with the approval of the military judge;
(d)the record is to be viewed only at a location specified by the military judge;
(e)no copies of the record are to be made or only the number of copies specified by the military judge may be made; and
(f)information regarding any person named in the record, such as their address, telephone number and place of employment, is to be severed from the record.
Copy to prosecutor
(4)If the military judge orders the production of the record or a part of the record to the accused person, the military judge shall direct that a copy of the record or the part of the record, as the case may be, be provided to the prosecutor, unless the military judge determines that it is not in the interests of military justice to do so.
Record not used in other proceedings
(5)The record or the part of the record that is produced to the accused person under an order made under subsection (1) must not be used in any other disciplinary, criminal, civil or administrative proceedings.
Retention of record by court
(6)If the military judge refuses to order the production of the record or a part of the record to the accused person, the record or the part of the record, as the case may be, must, unless the military judge orders otherwise, be kept by the military judge in a sealed package until the later of the expiry of the time for any appeal and the completion of any appeal in the proceedings against the accused person, at which time the record or the part of the record must be returned to the person lawfully entitled to possession or control of it.
Reasons for decision
180.08The military judge shall provide reasons in writing for ordering or not ordering the production of the record or a part of the record under subsection 180.05(1) or 180.07(1).
28The Act is amended by adding the following after section 183:
Support person — witnesses under 18 or with disability
183.1(1)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.
Other witnesses
(2)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.
Factors to be considered
(3)In determining whether to make an order under subsection (2), the military judge shall consider
(a)the witness’s age;
(b)the witness’s mental or physical disabilities, if any;
(c)the nature of the offence;
(d)the nature of any relationship between the witness and the accused person;
(e)whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(g)any other factor that the military judge considers relevant.
Witness not to be support person
(4)The military judge shall not permit a witness to be a support person unless the military judge is of the opinion that doing so is necessary for the proper administration of military justice.
No communication while testifying
(5)The military judge may order that the support person and the witness not communicate with each other while the witness testifies.
No adverse inference
(6)No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (2).
Testimony outside courtroom — witnesses under 18 or with disability
183.2(1)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.
Other witnesses
(2)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.
Factors to be considered
(3)In determining whether to make an order under subsection (2), the military judge shall consider
(a)the witness’s age;
(b)the witness’s mental or physical disabilities, if any;
(c)the nature of the offence;
(d)the nature of any relationship between the witness and the accused person;
(e)whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f)whether the order is needed to protect the identity of a peace officer, as defined in section 2 of the Criminal Code, who has acted, is acting or will be acting in an undercover capacity or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer as defined in that section;
(g)whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(h)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(i)any other factor that the military judge considers relevant.
Same procedure for determination
(4)If the military judge is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of the witness, the military judge shall order that the witness testify in accordance with that subsection.
Conditions of exclusion
(5)A witness shall not testify outside the courtroom in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused person, the military judge and, if a General Court Martial has been convened, its panel to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused person is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6)No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (2).
Accused not to cross-examine witnesses under 18
183.3(1)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences
(2)In proceedings against an accused person in respect of an offence punishable under section 130 that is an offence under section 264, 271, 272 or 273 of the Criminal Code, a military judge shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Other witnesses
(3)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused person not personally cross-examine the witness, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Factors to be considered
(4)In determining whether to make an order under subsection (3), the military judge shall consider
(a)the witness’s age;
(b)the witness’s mental or physical disabilities, if any;
(c)the nature of the offence;
(d)the nature of any relationship between the witness and the accused person;
(e)whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(g)any other factor that the military judge considers relevant.
No adverse inference
(5)No adverse inference may be drawn from the fact that counsel is, or is not, provided under this section.
Non-disclosure of witness’s identity
183.4(1)In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Hearing may be held
(2)The military judge may hold a hearing to determine whether the order should be made, and the hearing may be in private.
Factors to be considered
(3)In determining whether to make the order, the military judge shall consider
(a)the right to a fair and public hearing;
(b)the nature of the offence;
(c)whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d)whether the order is needed to protect the security of anyone known to the witness;
(e)whether the order is needed to protect the identity of a peace officer, as defined in section 2 of the Criminal Code, who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer as defined in that section;
(f)whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(h)the importance of the witness’s testimony to the case;
(i)whether effective alternatives to the making of the order are available in the circumstances;
(j)the salutary and deleterious effects of the order; and
(k)any other factor that the military judge considers relevant.
No adverse inference
(4)No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Order restricting publication — sexual offences
183.5(1)Subject to subsection (2), a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify a victim or a witness not be published in any document, or broadcast or transmitted in any way, if the proceedings are in respect of
(a)any of the following offences:
(i)an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347 of the Criminal Code,
(ii)any offence under the Criminal Code, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it had occurred on or after that day; or
(b)two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application
(2)In proceedings in respect of any offence referred to in subsection (1), the military judge shall
(a)as soon as feasible, inform the victim and any witness under the age of 18 years of their right to make an application for the order; and
(b)on application of the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(3)Subject to subsection (4), in proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(4)In proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall
(a)as soon as feasible, inform the victim of their right to make an application for the order; and
(b)on application of the victim or the prosecutor, make the order.
Child pornography
(5)In proceedings in respect of an offence punishable under section 130 that is an offence under section 163.1 of the Criminal Code, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall make an order directing that any information that could identify a witness who is under the age of 18 years or any person who is the subject of any representation, written material or recording that constitutes child pornography, as defined in that section 163.1, not be published in any document or broadcast or transmitted in any way.
Limitation
(6)An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.
Order restricting publication — victims and witnesses
183.6(1)Unless an order is made under section 183.5, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim or witness not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Military justice system participants
(2)On application of the prosecutor in respect of a military justice system participant who is involved in proceedings in respect of an offence referred to in subsection (3) or on application of the military justice system participant themself, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the military justice system participant not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Offences
(3)For the purpose of subsection (2), an offence is any of the following:
(a)an offence punishable under section 130 that is an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13 of the Criminal Code or that is a serious offence committed for the benefit of, at the direction of, or in association with a criminal organization;
(b)a terrorism offence;
(c)an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act;
(d)an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Security of Information Act and that is committed in relation to an offence referred to in paragraph (c).
Limitation
(4)An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.
Making of application
(5)An application for an order under this section must be made in accordance with regulations made by the Governor in Council.
Grounds
(6)The application must set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of military justice.
Hearing may be held
(7)The military judge may hold a hearing to determine whether an order under this section should be made, and the hearing may be held in private.
Factors to be considered
(8)In determining whether to make an order under this section, the military judge shall consider
(a)the right to a fair and public hearing;
(b)whether there is a real and substantial risk that the victim, witness or military justice system participant would suffer harm if their identity were disclosed;
(c)whether the victim, witness or military justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d)society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;
(e)whether effective alternatives are available to protect the identity of the victim, witness or military justice system participant;
(f)the salutary and deleterious effects of the order;
(g)the impact of the order on the freedom of expression of those affected by it; and
(h)any other factor that the military judge considers relevant.
Conditions
(9)An order made under this section may be subject to any conditions that the military judge thinks fit.
Publication prohibited
(10)Unless the military judge refuses to make an order under this section, no person shall publish in any document or broadcast or transmit in any way
(a)the contents of the application for the order;
(b)any evidence taken, information given or submissions made at a hearing held under subsection (7); or
(c)any other information that could identify the person to whom the application relates as a victim, witness or military justice system participant in the proceedings.
Security of witnesses
183.7(1)In proceedings against an accused person, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on his or her own motion, make any order other than one that may be made under section 180, if the military judge is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of military justice.
Factors to be considered
(2)In determining whether to make the order, the military judge shall consider
(a)the witness’s age;
(b)the witness’s mental or physical disabilities, if any;
(c)the right to a fair and public hearing;
(d)the nature of the service offence;
(e)whether the witness needs the order to protect them from intimidation or retaliation;
(f)whether the order is needed to protect the security of anyone known to the witness;
(g)society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;
(h)the importance of the witness’s testimony to the case;
(i)whether effective alternatives to the making of the order are available in the circumstances;
(j)the salutary and deleterious effects of the order; and
(k)any other factor that the military judge considers relevant.
No adverse inference
(3)No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
29The Act is amended by adding the following after section 189:
Pleas
Pleas permitted
189.1(1)An accused person who makes an application under subsection (2) or who, after the commencement of the trial, is called on to plead may plead guilty or not guilty, or any other plea authorized by regulations made by the Governor in Council.
Plea of guilty
(2)At any time after a court martial is convened but before the commencement of the trial, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Conditions for accepting guilty plea
(3)The military judge may accept a plea of guilty only if he or she is satisfied that
(a)the accused person is making the plea voluntarily; and
(b)the accused person
(i)understands that the plea is an admission of the essential elements of the service offence,
(ii)understands the nature and consequences of the plea, and
(iii)understands that the military judge is not bound by any agreement made between the accused person and the prosecutor.
Validity of plea
(4)The failure of the military judge to fully inquire whether the conditions set out in subsection (3) are met does not affect the validity of the plea.
Refusal to plead
(5)If an accused person refuses to plead or does not answer directly, he or she is deemed to have made a plea of not guilty.
Allowing time
(6)An accused person is not entitled as of right to have their trial postponed, but the military judge may, if the military judge considers that the accused person should be allowed further time to plead or prepare for their defence or for any other reason, adjourn the trial to a later time, on any terms that the military judge considers appropriate.
Included or other offence
(7)Despite any other provision of this Act, if an accused person pleads not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence, the military judge may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the military judge shall find the accused person not guilty of the offence charged and find him or her guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court martial.
Inquiry of court — serious personal injury offence
(8)If the accused person is charged with a service offence that is a serious personal injury offence and the accused person and the prosecutor have entered into an agreement under which the accused person will enter a plea of guilty of the service offence charged — or a plea of not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence — the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether reasonable steps were taken to inform the victims of the agreement.
Inquiry of court — certain offences
(9)If the accused person is charged with a serious offence that is not a serious personal injury offence and the accused person and the prosecutor have entered into an agreement referred to in subsection (8), the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Duty to inform
(10)If subsection (8) or (9) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Validity of plea
(11)Neither the failure of the military judge to inquire of the prosecutor as required under subsection (8) or (9) nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement affects the validity of the plea.
Definition of serious personal injury offence
(12)In this section, serious personal injury offence means
(a)a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i)the use or attempted use of violence against another person, or
(ii)conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or
(b)an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence.
2008, c. 29, s. 14
30Section 191.1 of the Act is repealed.
2007, c. 22, s. 36
31The portion of subsection 196.14(3) of the Act after paragraph (b) is replaced by the following:
In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that such an order would have on the person’s privacy and security and shall give reasons for the decision.
2002, c. 13, s. 88
32Section 196.29 of the Act is replaced by the following:
Destruction of fingerprints, photographs, etc.
196.29Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay, on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.
1998, c. 35, s. 51(3)
33Paragraph 202.14(2)‍(f) of the Act is repealed.
1998, c. 35, s. 60
34Section 215 of the Act is replaced by the following:
Court martial may suspend
215(1)If an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the court martial that imposed the punishment.
Consideration of victim’s safety and security
(2)If the court martial makes a decision that the carrying into effect of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Copy to victim
(3)The court martial shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
1998, c. 35, s. 63; 2012, c. 1, subpar. 160(h)‍(ii)
35Subsection 222(2) of the Act is replaced by the following:
Jurisdiction and discretion of Parole Board of Canada
(2)If the punishment of a service convict undergoing punishment in a penitentiary or of a service prisoner undergoing punishment in a civil prison is not suspended under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant, or revoke the parole of that convict or prisoner.
2007, c. 5, s. 4
36(1)Paragraph 227.19(2)‍(a) of the Act is replaced by the following:
(a)to the officer conducting the summary hearing and to a person who provides legal advice to the officer with respect to the hearing, in the case of a summary hearing; or
2007, c. 5, s. 4
(2)Subsections 227.19(3) and (4) of the Act are replaced by the following:
Disclosure in proceedings
(4)The officer who conducted the summary hearing may disclose the information to a review authority, and to a person who provides legal advice to the review authority, with respect to a review of a finding that a person has committed a service infraction or of any sanction imposed by that officer, if the information is relevant to the review.
37Section 230 of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (g) and by adding the following after paragraph (g):
(h)the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1).
38Section 230.1 of the Act is amended by striking out “or” at the end of paragraph (g), by adding “or” after paragraph (h) and by adding the following after paragraph (h):
(i)the legality of a decision to make an order under subsection 180.05(1) or 180.07(1).
1991, c. 43, s. 28
39Section 242 of the Act is replaced by the following:
Powers to suspend new punishment
242If a punishment included in a sentence has been dealt with under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.
40Section 248.3 of the Act is renumbered as subsection 248.3(1) and is amended by adding the following:
Consideration of victim’s safety and security
(2)If the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, directs that the person be released, the court martial, military judge or judge shall include in the direction a statement that the safety and security of every victim of the alleged offence has been considered.
Copy to victim
(3)The court martial, military judge or judge, as the case may be, shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
1998, c. 35, s. 82
41Division 11 of Part III of the Act is replaced by the following:
Division 11
Petition for New Trial
Right to petition on new evidence
249(1)Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.
Reference to CMAC for determination
(2)The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.
Reference to CMAC for opinion
(3)The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion, and that Court shall furnish its opinion accordingly.
New trial
(4)If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.
Royal prerogative
249.1Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.
1998, c. 35, s. 82
42Section 249.24 of the Act is replaced by the following:
Force and effect
249.24If a new punishment is substituted for a punishment imposed by a court martial, the new punishment has force and effect as if it had been imposed by the court martial in the first instance and the provisions of the Code of Service Discipline apply accordingly. However, if the new punishment involves incarceration, the term of the new punishment is to be reckoned from the date of substitution.
1998, c. 35, s. 82
43The portion of section 251 of the Act before paragraph (b) is replaced by the following:
Oaths
251At summary hearings and courts martial, and at proceedings before a military judge, board of inquiry or commissioner taking evidence under this Act, an oath must be taken by or administered to the following persons in the manner and in the forms prescribed in regulations made by the Governor in Council:
(a)the officer conducting the summary hearing;
2013, c. 24, s. 104
44Paragraph 302(d) of the Act is replaced by the following:
(d)prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a court martial, a military judge, an officer conducting a summary hearing, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or
45The Act is amended by adding the following after section 302:
Publication prohibited
303(1)No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(a)the contents of an application made under section 180.03;
(b)any evidence taken, information given or submissions made at a hearing under subsection 180.04(1) or 180.06(2);
(c)the determination of a military judge in respect of the making of an order under subsection 180.05(1) or 180.07(1) and the reasons provided under section 180.08, unless the military judge, after taking into account the interests of military justice and the right to privacy of the person to whom the record relates, orders that the determination and the reasons may be published, broadcast or transmitted.
Offence
(2)Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
Definition of record
(3)In this section, record has the same meaning as in section 180.01.
Failure to comply — orders under sections 183.‍5 and 183.‍6
303.1(1)Every person who fails to comply with an order made under section 183.5 or 183.6 is guilty of an offence punishable on summary conviction.
Application of order
(2)For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or military justice system participant whose identity is protected by the order.
Replacement of “service tribunal”
46The Act is amended by replacing every reference to “service tribunal” with a reference to “court martial” in the following provisions:
(a)section 121;
(b)subsection 132(2);
(c)subsection 145(2);
(d)section 149;
(e)paragraph 202.14(2)‍(c);
(f)subsection 204(1);
(g)subsection 226(2); and
(h)subsections 249.25(1), (2) and (4).
R.‍S.‍, c. C-46

Related Amendments to the Criminal Code

2001, c. 32, s. 11
47(1)Paragraph 423.1(1)‍(b) of the Criminal Code is replaced by the following:
(b)a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties; or
(2)Section 423.1 of the Act is amended by adding the following after subsection (3):
Definition of military justice system participant
(4)In this section, military justice system participant has the same meaning as in subsection 2(1) of the National Defence Act.

Consequential Amendments

R.‍S.‍, c. C-5

Canada Evidence Act

2001, c. 41, s. 43
48Subsection 38.01(5) of the Canada Evidence Act is replaced by the following:
Military proceedings
(5)In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.
2001, c. 41, s. 43
49Subsection 38.03(2) of the Act is replaced by the following:
Military proceedings
(2)In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.
2013, c. 9, s. 19(3)
50(1)Paragraph 38.04(5)‍(a) of the Act is replaced by the following:
(a)shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, with respect to making the application public;
2013, c. 9, s. 19(3)
(2)Paragraph 38.04(5)‍(a.‍2) of the Act is replaced by the following:
(a.‍2)shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter;
2001, c. 41, s. 43; 2013, c. 9, s. 21(1)
51Subsections 38.11(1.1) and (2) of the Act are replaced by the following:
Special rules — hearing in National Capital Region
(1.1)A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act.
Ex parte representations
(2)The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)‍(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, the opportunity to make representations ex parte.
2001, c. 41, s. 43
52Subsection 38.13(2) of the Act is replaced by the following:
Military proceedings
(2)In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.
2001, c. 41, s. 43
53Subsection 38.131(3) of the Act is replaced by the following:
Military proceedings
(3)In the case of proceedings under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.
2001, c. 41, s. 44
54Item 10 of the schedule to the Act is replaced by the following:
10A court martial or a military judge for the purposes of Part III of the National Defence Act
R.‍S.‍, c. F-7; 2002, c. 8, s. 14

Federal Courts Act

2002, c. 8, s. 28
55Subsection 18.3(2) of the Federal Courts Act is replaced by the following:
Reference by Attorney General of Canada
(2)The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a court martial and an officer conducting a summary hearing, as defined in subsection 2(1) of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination.
2002, c. 8, s. 54(1)
56Subsection 57(1) of the Act is replaced by the following:
Constitutional questions
57(1)If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a court martial and an officer conducting a summary hearing, as defined in subsection 2(1) of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
R.‍S.‍, c. G-3

Geneva Conventions Act

1990, c. 14, s. 2
57Subsection 3(4) of the Geneva Conventions Act is replaced by the following:
Consent
(4)Proceedings with respect to an offence referred to in subsection (1), other than proceedings before a court martial, as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada or the Deputy Attorney General of Canada and be conducted by the Attorney General of Canada or by counsel acting on behalf of the Attorney General of Canada.
R.‍S.‍, c. V-2

Visiting Forces Act

58Section 8 of the Visiting Forces Act is replaced by the following:
Witnesses
8The members of a service court of a visiting force, exercising jurisdiction by virtue of this Act, and witnesses appearing before such a service court have the same immunities and privileges as a court martial exercising jurisdiction under the National Defence Act and witnesses appearing before a court martial.
2004, c. 10

Sex Offender Information Registration Act

2007, c. 5, s. 47(6)
59(1)Subparagraph 16(4)‍(h)‍(i) of the Sex Offender Information Registration Act is replaced by the following:
(i)to a prosecutor in connection with a proceeding that results from an investigation referred to in paragraph (c) and that is before a court of criminal jurisdiction or a superior court of criminal jurisdiction, as defined in section 2 of the Criminal Code, or a court martial, as defined in subsection 2(1) of the National Defence Act,
2007, c. 5, s. 47(6)
(2)Subparagraphs 16(4)‍(h)‍(iii) and (iv) of the Act are replaced by the following:
(iii)to the court or military judge presiding over the proceeding or appeal, or
(iv)to a review authority referred to in section 163.6 of the National Defence Act for its review under that section and to a person who provides legal advice to the review authority in connection with that review;
2014, c. 27

Prohibiting Cluster Munitions Act

60Section 18 of the Prohibiting Cluster Munitions Act is replaced by the following:
Consent of Attorney General of Canada
18Proceedings for an offence under section 17 or under a regulation made under section 23, other than proceedings before a court martial as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada.
2015, c. 13, s. 2

Canadian Victims Bill of Rights

61Subsection 18(3) of the Canadian Victims Bill of Rights is replaced by the following:
National Defence Act
(3)Subject to subsection (4), this Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.
Application
(4)This Act applies in respect of an offender who is convicted of a service offence, as defined in subsection 2(1) of the National Defence Act and who is committed to a penitentiary or a civil prison, as those terms are defined in that subsection.
62Subsection 22(2) of the Act is replaced by the following:
Exception — Acts, regulations, etc.
(2)Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and in respect of orders, rules and regulations made under any of those Acts. It also does not apply in respect of Division 1.1 of Part III of the National Defence Act and in respect of any orders, rules and regulations made under that Act to the extent that they apply in relation to that Division.

Related and Coordinating Amendments

2013, c. 24
63(1)In this section, other Act means the Strengthening Military Justice in the Defence of Canada Act.
(2)If section 12 of the other Act comes into force before section 3 of this Act, then that section 3 is repealed.
(3)If section 12 of the other Act comes into force on the same day as section 3 of this Act, then that section 3 is deemed to have come into force before that section 12.
(4)On the first day on which both section 14 of the other Act and subsection 2(1) of this Act are in force, paragraph 66(1)‍(b) of the National Defence Act is replaced by the following:
(b)has been found guilty by a court martial, 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.
(5)On the first day on which both section 24 of the other Act and subsection 2(1) of this Act are in force, section 148 of the National Defence Act is replaced by the following:
Imprisonment or detention
148(1)A court martial 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 offender’s age and character, 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 to a military judge after giving notice to the Director of Military Prosecutions.
New sentence of imprisonment or detention
(3)If a court martial 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 is to be served on consecutive days unless the court martial orders otherwise.
Hearing into breach of conditions
(4)On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)‍(b) may be made by a military judge.
Consequences of breach
(5)If a military judge determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the military judge 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 the military judge sees fit.
(6)On the first day on which both section 27 of the other Act and subsection 2(1) of this Act are in force, paragraph 155(2.1)‍(b) of the National Defence Act is replaced by the following:
(b)they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a court martial in order to be dealt with according to law.
(7)On the first day on which both section 65 of the other Act and subsection 2(1) of this Act are in force, subsection 216(2.1) of the National Defence Act is replaced by the following:
Notification
(2.1)A suspending authority that suspends a punishment shall provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.
(8)On the first day on which both section 74 of the other Act and subsection 2(1) of this Act are in force, subsection 249.25(1) of the National Defence Act is replaced by the following:
Restitution of property
249.25(1)A court martial that finds a person guilty of an offence shall order that any property obtained by the commission of the offence be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.
(9)If section 24 of this Act comes into force before section 34 of the other Act, then that section 34 is repealed.
(10)If section 34 of the other Act comes into force on the same day as section 24 of this Act, then that section 34 is deemed to have come into force before that section 24.
(11)If section 25 of this Act comes into force before section 35 of the other Act, then that section 35 is repealed.
(12)If section 35 of the other Act comes into force on the same day as section 25 of this Act, then that section 35 is deemed to have come into force before that section 25.
(13)If section 25 of this Act comes into force before subsection 36(1) of the other Act, then that subsection 36(1) is repealed.
(14)If subsection 36(1) of the other Act comes into force on the same day as section 25 of this Act, then that subsection 36(1) is deemed to have come into force before that section 25.
(15)If section 25 of this Act comes into force before subsection 36(2) of the other Act, then that subsection 36(2) is repealed.
(16)If subsection 36(2) of the other Act comes into force on the same day as section 25 of this Act, then that subsection 36(2) is deemed to have come into force before that section 25.
(17)If section 25 of this Act comes into force before subsection 36(3) of the other Act, then that subsection 36(3) is repealed.
(18)If subsection 36(3) of the other Act comes into force on the same day as section 25 of this Act, then that subsection 36(3) is deemed to have come into force before that section 25.
(19)If section 25 of this Act comes into force before subsection 36(4) of the other Act, then that subsection 36(4) is repealed.
(20)If subsection 36(4) of the other Act comes into force on the same day as section 25 of this Act, then that subsection 36(4) is deemed to have come into force before that section 25.
(21)On the first day on which both section 62 of the other Act and section 25 of this Act are in force,
(a)the heading before section 203.1 of the National Defence Act is replaced by the following:
Purpose and Principles of Sentencing by Courts Martial
(b)subsection 203.1(1) of the National Defence Act is replaced by the following:
Fundamental purpose of sentencing
203.1(1)The fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.
(c)the portion of subsection 203.1(2) of the National Defence Act before paragraph (a) is replaced by the following:
Objectives
(2)The fundamental purpose of sentencing is to be achieved by imposing just punishments that have one or more of the following objectives:
(d)paragraph 203.1(2)‍(c) of the National Defence Act is replaced by the following:
(c)to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(e)paragraph 203.1(2)‍(i) of the National Defence Act is replaced by the following:
(i)to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.
(f)the portion of section 203.3 of the National Defence Act before paragraph (a) is replaced by the following:
Other sentencing principles
203.3Sentences must be imposed in accordance with the following other principles:
(g)section 203.4 of the National Defence Act is replaced by the following:
Abuse of persons under age of 18
203.4When a court martial 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.
(h)sections 203.6 and 203.7 of the National Defence Act are replaced by the following:
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 physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
Filing of statement
(2)The victim’s statement must be filed in accordance with 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, at the victim’s request, permit the victim to present the statement by
(a)reading it;
(b)reading it in the presence and close proximity of any support person of the victim’s choice;
(c)subject to subsection 203.7(4), reading it outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or
(d)presenting it 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 in accordance with this section, 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 determining whether the offender should be discharged absolutely.
Inquiry by court martial
203.7(1)As soon as feasible after a finding of guilt and in any event before imposing sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 203.6(1).
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.
Photograph
(3)During the presentation
(a)the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings; or
(b)if the statement is presented by an individual acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings.
Conditions of exclusion
(4)The victim shall not present the statement outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Consideration of statement
(5)In considering the statement, the court martial shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection 203.6(1) and disregard any other portion.
Military Impact Statement
Military impact statement
203.71(1)When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made on the behalf of the Canadian Forces describing the harm done to discipline, efficiency or morale as a result of the commission of the offence and the impact of the offence on discipline, efficiency or morale.
Filing of statement
(2)The statement must be prepared by an officer or non-commissioned member who is authorized to do so by regulations made by the Governor in Council and it must be filed in accordance with regulations made by the Governor in Council.
Presentation of statement
(3)The court martial shall, at the request of the person who made the statement, permit the person to present the statement by reading it or by presenting it in any other manner that the court martial considers appropriate.
Copy of statement
(4)The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.
Community Impact Statement
Community impact statement
203.72(1)When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made by an individual on a community’s behalf, describing the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.
Filing of statement
(2)The statement must be filed in accordance with regulations made by the Governor in Council.
Presentation of statement
(3)The court martial shall, at the request of the individual who made the statement, permit the individual to present the statement by
(a)reading it;
(b)reading it in the presence and close proximity of any support person of the individual’s choice;
(c)subject to subsection (4), reading it outside the courtroom or behind a screen or other device that would allow the individual not to see the offender; or
(d)presenting it in any other manner that the court martial considers appropriate.
Conditions of exclusion
(4)The individual making the statement shall not present it outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Copy of statement
(5)The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.
(i)subsection 203.8(1) of the National Defence Act is replaced by the following:
Absolute discharge
203.8(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 14 years or for life, the court martial before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.
(j)the portion of subsection 203.8(2) of the English version of the National Defence Act before paragraph (a) is replaced by the following:
Effect of discharge
(2)If a court martial directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that
(k)paragraph 203.8(2)‍(b) of the National Defence Act is replaced by the following:
(b)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
(l)the National Defence Act is amended by adding the following before section 203.9:
Court martial to consider restitution order
203.81(1)A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely shall consider making a restitution order under section 203.9.
Inquiry by court martial
(2)As soon as feasible after a finding of guilt and in any event before imposing the sentence or directing that the offender be discharged absolutely, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3)On application of the prosecutor or on its own motion, the court martial may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
Form
(4)Victims and other persons may indicate whether they are seeking restitution by completing a form prescribed in regulations made by the Governor in Council and by filing it in accordance with the procedures provided for in regulations made by the Governor in Council, and, if they are seeking restitution, shall establish, in the same manner, their losses and damages, the amount of which must be readily ascertainable.
Reasons
(5)If a victim seeks restitution and the court martial does not make a restitution order, it shall include in the court record a statement of its reasons for not doing so.
(m)sections 203.91 and 203.92 of the National Defence Act are replaced by the following:
Ability to pay
203.901The offender’s financial means or ability to pay does not prevent the court martial from making an order under section 203.9.
Payment under order
203.902In making an order under section 203.9, the court martial shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court martial is of the opinion that the amount should be paid in instalments, in which case the court martial shall set out a periodic payment scheme in the order.
More than one person
203.91An order under section 203.9 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
Enforcing restitution order
203.92(1)An offender who fails to pay an amount that is ordered to be paid in a restitution order by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order, and the person who was to be paid the amount or to whom the periodic payment was to be made, as the case may be, may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil 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
(2)All or any part of an amount that is ordered to be paid in a restitution order may be taken out of moneys found in the possession of the offender at the time of their arrest 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, so directs.
(n)section 203.93 of the English version of the National Defence Act is replaced by the following:
Notice of order
203.93A court martial that makes a restitution order 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.
(22)On the first day on which both section 62 of the other Act and this section are in force, subparagraph 203.3(a)‍(ii) of the National Defence Act is replaced by the following:
(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, sexual orientation, or gender identity or expression, or on any other similar factor,
(23)On the first day on which both section 62 of the other Act and this section are in force, paragraphs 203.3(c) and (d) of the National Defence Act are replaced by the following:
(c)an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;
(c.‍1)all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders;
(d)a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces; and
(24)On the first day on which both section 50 of the other Act and section 27 of this Act are in force, section 180 of the National Defence 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)Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.
Exception
(2)A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.
Factors to be considered
(3)In determining whether the order is in the interest of the proper administration of military justice, the military judge shall consider
(a)society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(b)the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c)the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;
(d)whether any witness needs the order for their security or to protect them from intimidation or retaliation;
(e)the protection of military justice system participants who are involved in the proceedings;
(f)whether effective alternatives to the making of the order are available in the circumstances;
(g)the salutary and deleterious effects of the order; and
(h)any other factor that the military judge considers relevant.
No adverse inference
(4)No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Reasons to be stated
(5)If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.
Witnesses
(6)Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.
Clearing court
(7)For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.
(25)On the first day on which both section 64 of the other Act and section 34 of this Act are in force,
(a)subsections 215(1) to (3) of the National Defence Act are 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 court martial that imposes the punishment or, if the offender’s sentence is affirmed, is substituted or is imposed on appeal, by the Court Martial Appeal Court.
Consideration of victim’s safety and security
(1.1)If the court martial or the Court Martial Appeal Court, as the case may be, makes a decision that the execution of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Copy to victim
(1.2)The court martial or the Court Martial Appeal Court, as the case may be, shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
Conditions
(2)In suspending the execution of a punishment, the court martial 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) or (b); and
(c)in the case of an offender 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)The court martial or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.
(b)sections 215.1 and 215.2 of the National Defence Act are replaced by the following:
Varying conditions
215.1On application by an offender, a condition imposed under subsection 215(3) or varied, added or substituted under this section or section 215.2 may be varied, or another condition may be substituted for that condition, by
(a)a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or
(b)a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.
Hearing into breach of conditions
215.2(1)On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under section 215 or varied, added or substituted under section 215.1 or this section may be made by
(a)a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or
(b)a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.
Revocation of suspension or changes to conditions
(2)If a person referred to in paragraph (1)‍(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 suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or
(b)vary any conditions imposed under subsection 215(3) or varied, added or substituted under section 215.1 or this section, or add or substitute other conditions, as the person sees fit.
(26)If section 69 of the other Act comes into force before section 37 of this Act, then that section 37 is replaced by the following:
37Section 230 of the Act is amended by adding the following after paragraph (i):
(i.‍1)the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);
(27)If section 37 of this Act comes into force before section 69 of the other Act, then that section 69 is replaced by the following:
69Section 230 of the Act is amended by striking out “or” at the end of paragraph (g) and by replacing paragraph (h) with the following:
(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 reasonableness 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 of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);
(k)the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9, 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 condition imposed, varied, added or substituted by a court martial under subsection 215(3) or section 215.1 or 215.2.
(28)If section 69 of the other Act comes into force on the same day as section 37 of this Act, then
(a)that section 37 is deemed never to have come into force and is repealed; and
(b)section 230 of the National Defence Act is amended by adding the following after paragraph (i):
(i.‍1)the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);
(29)If section 70 of the other Act comes into force before section 38 of this Act, then that section 38 is replaced by the following:
38Section 230.1 of the Act is amended by adding the following after paragraph (j):
(j.‍1)the legality of a decision to make an order under subsection 180.05(1) or 180.07(1);
(30)If section 38 of this Act comes into force before section 70 of the other Act, then that section 70 is replaced by the following:
70Section 230.1 of the Act is amended by striking out “or” at the end of paragraph (h) and by replacing paragraph (i) with the following:
(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 reasonableness 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 of a decision to make an order under subsection 180.05(1) or 180.07(1);
(l)the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9, or the legality of an order made under section 249.25; or
(m)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, varied, added or substituted by a court martial under subsection 215(3) or section 215.1 or 215.2.
(31)If section 70 of the other Act comes into force on the same day as section 38 of this Act, then
(a)that section 38 is deemed never to have come into force and is repealed; and
(b)section 230.1 of the National Defence Act is amended by adding the following after paragraph (j):
(j.‍1)the legality of a decision to make an order under subsection 180.05(1) or 180.07(1);
(32)On the first day on which both section 63 of the other Act and section 46 of this Act are in force, subsection 204(1) of the National Defence 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 day on which the court martial pronounces sentence on the offender.
(33)On the first day on which both section 75 of the other Act and this section are in force, the portion of subsection 249.27(1) of the French version of the National Defence Act before paragraph (a) is replaced by the following:
Déclaration de culpabilité — infraction particulière
249.27(1)Quiconque est condamné pour l’une ou l’autre des infractions ci-après, ou l’a été avant l’entrée en vigueur du présent article, n’est pas condamné pour une infraction criminelle :
(34)If section 75 of the other Act comes into force before the day on which this Act receives royal assent, the portion of paragraph 249.27(1)‍(a) of the National Defence Act before subparagraph (i) is replaced by the following:
(a)an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:
(35)If subsection (34) applies, the portion of paragraph 249.27(1)‍(a) of the National Defence Act before subparagraph (i), as enacted by that subsection (34), is deemed to have been enacted on the day on which section 75 of the other Act came into force.
(36)If subsection (34) does not apply, then on the day on which section 75 of the other Act comes into force, the portion of paragraph 249.27(1)‍(a) of the National Defence Act before subparagraph (i) is replaced by the following:
(a)an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:
2014, c. 6
64(1)In this section, other Act means the Not Criminally Responsible Reform Act.
(2)On the first day on which both section 25 of the other Act and section 7 of this Act are in force, section 71.04 of the National Defence Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:
(b.‍1)hearings held under section 202.161 to decide whether the accused person is a high-risk accused and the dispositions made at those hearings; and
(3)On the first day on which both section 25 of the other Act and section 29 of this Act are in force,
(a)subsection 2(1) of the National Defence Act is amended by adding the following in alphabetical order:
serious personal injury offence means
(a)a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i)the use or attempted use of violence against another person, or
(ii)conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, or
(b)an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence; (infraction grave contre la personne)
(b)subsection 189.1(12) of the National Defence Act is repealed; and
(c)subsection 202.161(5) of the National Defence Act is repealed.
2013, c. 24 and 2014, c. 6
65(1)The following definitions apply in this section.
first Act means the Strengthening Military Justice in the Defence of Canada Act. (première loi)
second Act means the Not Criminally Responsible Reform Act. (deuxième loi)
(2)If both section 59 of the first Act and section 26 of the second Act come into force before subsection 2(3) of this Act, then, on the day on which that subsection 2(3) comes into force,
(a)subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16)For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(b)subsection 202.201(23) of the National Defence Act is repealed; and
(c)section 203 of the National Defence Act and the heading “Interpretation” before it are repealed.
(3)If section 59 of the first Act comes into force before the day on which subsection 2(3) of this Act comes into force and that subsection 2(3) comes into force on the same day as section 26 of the second Act, then that section 26 is deemed to have come into force before that subsection 2(3) and subsection (2) applies as a consequence.
(4)If section 26 of the second Act comes into force before the day on which subsection 2(3) of this Act comes into force and that subsection 2(3) comes into force on the same day as section 59 of the first Act, then that section 59 is deemed to have come into force before that subsection 2(3) and subsection (2) applies as a consequence.
(5)If section 59 of the first Act, section 26 of the second Act and subsection 2(3) of this Act all come into force on the same day, then those sections 59 and 26 are deemed to have come into force before that subsection 2(3) and subsection (2) applies as a consequence.
(6)If both section 59 of the first Act and subsection 2(3) of this Act come into force before section 26 of the second Act, then
(a)subsection 202.201(15) of the National Defence Act is replaced by the following:
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 physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(b)subsection 202.201(22) of the National Defence Act is repealed;
(c)section 203 of the National Defence Act and the heading “Interpretation” before it are repealed; and
(d)on the day on which that section 26 comes into force,
(i)subsection 202.201(16) of the National Defence Act is replaced by the subsection 202.201(16) of that Act that is set out in paragraph (2)‍(a), and
(ii)subsection 202.201(23) of the National Defence Act is repealed.
(7)If both section 26 of the second Act and subsection 2(3) of this Act come into force before section 59 of the first Act, then
(a)the definition victim in subsection 2(1) of the National Defence Act is replaced by the following:
victim means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and section 202.201, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person. (victime)
(b)subsection 202.201(16) of the National Defence Act is replaced by the subsection 202.201(16) of that Act that is set out in paragraph (2)‍(a);
(c)subsection 202.201(23) of the National Defence Act is repealed;
(d)section 59 of the first Act is repealed; and
(e)section 62 of the first Act is amended by repealing the section 203 that it enacts and the heading “Interpretation” before that section 203.
(8)If subsection 2(3) of this Act comes into force before the day on which section 59 of the first Act comes into force and that section 59 comes into force on the same day as section 26 of the second Act, then
(a)subsection 202.201(16) of the National Defence Act is replaced by the subsection 202.201(16) of that Act set out in paragraph (2)‍(a);
(b)subsection 202.201(23) of the National Defence Act is repealed.
(9)On the first day on which both section 59 of the first Act and subsection 2(3) of this Act are in force, the definition victim in subsection 2(1) of the National Defence Act is replaced by the following:
victim means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and sections 202.201, 203.6 and 203.7, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person. (victime)
(10)If both section 59 of the first Act and section 26 of the second Act are not in force on the day on which subsection 2(4) of this Act comes into force, then
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of section 189.1:
(b)section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of section 189.1 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(11)If subsection (10) has produced its effects and section 59 of the first Act is not in force on the day on which section 26 of the second Act comes into force, then
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1 and 202.201:
(b)subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1 and 202.201 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(12)If subsection (10) has produced its effects, then, on the day on which section 59 of the first Act comes into force,
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:
(b)subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(13)If section 26 of the second Act comes into force before subsection 2(4) of this Act and section 59 of the first Act is not in force on the day on which that subsection 2(4) comes into force — or if that section 26 and that subsection 2(4) come into force on the same day and that section 59 is not in force on that day — then, on the day on which that subsection 2(4) comes into force,
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1 and 202.201:
(b)section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1 and 202.201 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(14)If subsection (13) has produced its effects, then, on the day on which section 59 of the first Act comes into force,
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:
(b)subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(15)If section 59 of the first Act comes into force before subsection 2(4) of this Act — or if that section 59 and that subsection 2(4) come into force on the same day — then, on the day on which that subsection 2(4) comes into force,
(a)the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1)Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:
(b)section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3)An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.

Transitional Provisions

Proceedings
66The National Defence Act, as it read immediately before the coming into force of section 25 of this Act, applies
(a)in respect of proceedings against a person who is alleged to have committed a service offence that were commenced by the laying of a charge before the coming into force of that section 25; and
(b)in respect of all matters related to those proceedings.
Section 203.‍1 of National Defence Act
67Paragraphs 203.1(2)‍(c) and (i) of the National Defence Act, as enacted, respectively, by paragraphs 63(21)‍(d) and (e), apply only in respect of sentences imposed in respect of conduct engaged in on or after the day on which those paragraphs 63(21)‍(d) and (e) produce their effects.

Coming into Force

Order in council
68(1)Subject to subsection (2), the provisions of this Act, other than sections 63 to 67, come into force on a day or days to be fixed by order of the Governor in Council.
Order in council
(2)Sections 2 and 29 of this Act come into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons

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