|
|
|
|
|
|
His Excellency the Governor General recommends to the House of
Commons the appropriation of public revenue under the circumstances,
in the manner and for the purposes set out in a measure entitled ``An Act
to amend the National Defence Act and to make consequential
amendments to other Acts''.
|
|
|
|
|
|
|
|
This enactment reforms and modernizes the National Defence Act
and, in particular, the Code of Service Discipline. Key components of
the enactment include:
|
|
|
|
- clarification of the roles and responsibilities of the principal
actors in the military justice system, including the Minister of
National Defence and the Judge Advocate General, and the
establishment of clear standards of institutional separation
between the investigative, prosecutorial, defence and judicial
functions;
|
|
|
|
- establishment of a Director of Military Prosecutions who prefers
all charges to be tried by court martial and has conduct of all
prosecutions at court martial;
|
|
|
|
- establishment of a Canadian Forces Grievance Board to make
findings and provide recommendations to the Chief of the
Defence Staff on grievances by members of the Canadian Forces;
|
|
|
|
- establishment of a Military Police Complaints Commission to
investigate complaints as to military police conduct and
interference with military police investigations;
|
|
|
|
- abolition of the death penalty and substitution of the punishment
of life imprisonment; and
|
|
|
|
- increased reporting through the release of annual reports by the
Canadian Forces Grievance Board, the Military Police
Complaints Commission and the Judge Advocate General.
|
|
|
|
|
|
|
|
|
|
|
|
Clause 1: (1) The definitions ``Code of Service
Discipline'', ``materiel'' and ``service convict'' in
section 2 of the National Defence Act read as follows:
|
|
|
|
``Code of Service Discipline'' means the provisions of Parts IV to IX;
|
|
|
|
``materiel'' means all public property, other than real property and
money, provided for the Canadian Forces or the Defence Research
Board or for any other purpose under this Act, and includes any
vessel, vehicle, aircraft, animal, missile, arms, ammunition,
clothing, stores, provisions or equipment so provided;
|
|
|
|
``service convict'' means a person who is under a sentence that includes
a punishment of imprisonment for two years or more imposed on that
person pursuant to the Code of Service Discipline;
|
|
|
|
(2) The definition ``penitentiary'' in section 2 reads as
follows:
|
|
|
|
``penitentiary''
|
|
|
|
(a) means a penitentiary established under Part I of the
Corrections and Conditional Release Act,
|
|
|
|
(b) includes, in respect of any punishment of imprisonment for
two years or more imposed outside Canada pursuant to the Code
of Service Discipline, any prison or place in which a person
sentenced to imprisonment for two years or more by a civil court
having jurisdiction in the place where the sentence is imposed can
for the time being be confined, and
|
|
|
|
(c) means, where in any place outside Canada there is no prison
or place for the confinement of persons sentenced to
imprisonment for two years or more, a civil prison;
|
|
|
|
(3) The relevant portion of the definition
``possession'' reads as follows:
|
|
|
|
``possession'' by any person, for the purpose of the Code of Service
Discipline and Part XII, includes
|
|
|
|
(4) New.
|
|
|
|
(5) The relevant portion of subsection 2(2) reads as
follows:
|
|
|
|
(2) For the purposes of the Code of Service Discipline and Part XII,
|
|
|
|
Clause 2: Sections 9 and 10 read as follows:
|
|
|
|
9. The Governor in Council may appoint a barrister or advocate of
not less than ten years standing to be the Judge Advocate General of the
Canadian Forces.
|
|
|
|
10. The powers of the Judge Advocate General may be exercised,
and the duties and functions of the Judge Advocate General may be
performed, by such other person as the Minister may authorize to act for
the Judge Advocate General for that purpose.
|
|
|
|
Clause 3: Section 11 reads as follows:
|
|
|
|
11. The Governor in Council may authorize the Minister to deliver
to any department or agency of the Government of Canada, for sale to
such countries or international welfare organizations on such terms as
the Governor in Council may determine, any materiel that has not been
declared surplus and is not immediately required for the use of the
Canadian Forces or the Defence Research Board or for any other
purpose under this Act.
|
|
|
|
Clause 4: Subsection 12(3) reads as follows:
|
|
|
|
(3) The Treasury Board may make regulations prescribing the rates
and conditions of issue of pay and allowances of officers and
non-commissioned members and the forfeitures and deductions to
which the pay and allowances of officers and non-commissioned
members are subject.
|
|
|
|
Clause 5: New.
|
|
|
|
Clause 6: New.
|
|
|
|
Clause 7: Section 29 and the heading before it read as
follows:
|
|
|
|
|
|
|
|
29. Except in respect of a matter that would properly be the subject
of an appeal or petition under Part IX or an application or appeal under
Part IX.1, an officer or non-commissioned member who considers that
he has suffered any personal oppression, injustice or other ill-treatment
or that he has any other cause for grievance may as a matter of right seek
redress from such superior authorities in such manner and under such
conditions as shall be prescribed in regulations made by the Governor
in Council.
|
|
|
|
Clause 8: (1) The relevant portion of subsection 33(2)
reads as follows:
|
|
|
|
(2) The reserve force, all units and other elements thereof and all
officers and non-commissioned members thereof
|
|
|
|
|
|
|
|
(b) may be called out on service to perform any military duty other
than training at such times and in such manner as by regulations or
otherwise are prescribed by the Governor in Council.
|
|
|
|
(2) New.
|
|
|
|
Clause 9: Section 34 reads as follows:
|
|
|
|
34. (1) Where the Governor in Council has declared that a disaster
exists or is imminent that is, or is likely to be, so serious as to be of
national concern, the regular force or any unit or other element thereof
or any officer or non-commissioned member thereof is liable to perform
those services in respect of the disaster, existing or imminent, as the
Minister may authorize, and the performance of those services shall be
deemed to be military duty.
|
|
|
|
(2) Where the Governor in Council declares that a disaster described
in subsection (1) exists or is imminent and that the services of the
reserve force are required for the purpose of rendering assistance in
respect of the disaster, existing or imminent, the Governor in Council
may authorize the reserve force or any unit or other element thereof or
any officer or non-commissioned member thereof to be called out on
service for that purpose and all officers and non-commissioned
members while so called out shall be deemed to be performing military
duty.
|
|
|
|
(3) Nothing in subsection (2) shall be deemed to impose liability to
serve as prescribed therein, without his consent, on an officer or
non-commissioned member of the reserve force who is, by virtue of the
terms of his enrolment, liable to perform duty on active service only.
|
|
|
|
Clause 10: Section 35 and the heading before it read
as follows:
|
|
|
|
|
|
|
|
35. The pay and allowances of officers and non-commissioned
members shall be at such rates, issued under such conditions and subject
to such forfeitures and deductions as are prescribed in regulations made
by the Treasury Board.
|
|
|
|
Clause 11: The relevant portion of subsections 42(2)
read as follows:
|
|
|
|
(2) For the purposes of this section, but subject to any exceptions
prescribed in regulations made by the Governor in Council, ``service
estate'' means the following parts of the estate of a deceased officer or
non-commissioned member mentioned in subsection (1):
|
|
|
|
|
|
|
|
(d) personal belongings, including cash, found on the deceased
person or in camp, quarters or otherwise in the care or custody of the
Canadian Forces; and
|
|
|
|
(e) in the case of an officer or non-commissioned member dying
outside Canada, all other personal property belonging to the
deceased and situated outside Canada if in the opinion of the person
authorized to administer service estates the total value of that other
property does not exceed ten thousand dollars.
|
|
|
|
Clause 12: Section 44 and the heading before it read
as follows:
|
|
|
|
|
|
|
|
44. The personal belongings and decorations of an officer or
non-commissioned member who is absent without leave that are found
in camp, quarters or otherwise in the care or custody of the Canadian
Forces vest in Her Majesty and shall be disposed of in accordance with
regulations made by the Governor in Council.
|
|
|
|
Clause 13: Subsection 45(2) reads as follows:
|
|
|
|
(2) A board of inquiry may administer oaths and take and receive
affidavits, declarations and solemn affirmations relating to any matter
that the board is convened to investigate.
|
|
|
|
Clause 14: New.
|
|
|
|
Clause 15: Subsection 47(1) reads as follows:
|
|
|
|
47. (1) The Governor in Council, and such other authorities as are
prescribed or appointed by the Governor in Council for that purpose,
may in the interests of national defence establish institutions for the
training and education of officers and non-commissioned members,
officers and employees of the Department and of the Defence Research
Board, candidates for enrolment in the Canadian Forces or for
employment in the Department or by the Defence Research Board and
other persons whose attendance has been authorized by or on behalf of
the Minister.
|
|
|
|
Clause 16: Section 54 reads as follows:
|
|
|
|
54. Every bond to Her Majesty entered into by any person before a
judge, a justice of the peace or an officer of the Canadian Forces for the
purpose of securing the payment of a sum of money or the performance
of a duty or act required or authorized by this Act or by regulations is
valid and may be enforced accordingly.
|
|
|
|
Clause 17: This amendment would repeal Part III
which sets up the legal framework for the Defence
Research Board. This Board was intended to advise the
Minister on all matters relating to scientific,
technological and other research and development that
are referred to the Board by the Minister or that, in the
opinion of the Board, may affect national defence. The
Board has not functioned since the late 1970's and its
functions have been incorporated into the Department of
National Defence.
|
|
|
|
Clause 18: The headings before section 60 read as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Clause 19: The relevant portion of subsection 60(1)
reads as follows:
|
|
|
|
60. (1) The following persons are subject to the Code of Service
Discipline:
|
|
|
|
|
|
|
|
(c) an officer or non-commissioned member of the reserve force
when the officer or non-commissioned member is
|
|
|
|
|
|
|
|
(iv) called out under subsection 34(2) to render assistance in a
disaster,
|
|
|
|
(v) called out under Part XI in aid of the civil power,
|
|
|
|
Clause 20: Subsections 66(1) and (2) reads as follows:
|
|
|
|
66. (1) Where, while subject to the Code of Service Discipline in
respect of an offence, or where, while liable to be charged, dealt with
and tried under that Code in respect of an offence, a person
|
|
|
|
(a) has been charged with having committed that offence and the
charge has been dismissed,
|
|
|
|
(b) has been found not guilty by a service tribunal, civil court or court
of a foreign state on a charge of having committed that offence, or
|
|
|
|
(c) has been found guilty by a service tribunal, civil court or court of
a foreign state on a charge of having committed that offence and has
been punished in accordance with the sentence,
|
|
|
|
that person may not be tried or tried again in respect of that offence or
any other substantially similar offence arising out of the facts that gave
rise to the offence.
|
|
|
|
(2) Nothing in subsection (1) affects the validity of a new trial
ordered or directed under section 210, 238 or 248 or by a court having
jurisdiction to order or direct a new trial.
|
|
|
|
Clause 21: Section 69 and the heading before it read
as follows:
|
|
|
|
|
|
|
|
69. (1) Except in respect of the service offences described in
subsections (2) and (2.1), no person is liable to be tried by a service
tribunal unless the trial of that person begins before the expiration of a
period of three years after the day on which the service offence was
alleged to have been committed.
|
|
|
|
(2) Every person subject to the Code of Service Discipline at the time
of the alleged commission by that person of a service offence of mutiny,
desertion or absence without leave or a service offence for which the
highest punishment that may be imposed is death continues to be liable
to be charged, dealt with and tried at any time under the Code of Service
Discipline.
|
|
|
|
(2.1) Every person subject to the Code of Service Discipline at the
time of the alleged commission by that person of a service offence under
section 130 that relates to a grave breach referred to in subsection 3(1)
of the Geneva Conventions Act continues to be liable to be charged,
dealt with and tried at any time under the Code of Service Discipline.
|
|
|
|
(3) In calculating the period of limitation referred to in subsection
(1), there shall not be included
|
|
|
|
(a) time during which a person was a prisoner of war;
|
|
|
|
(b) any period of absence in respect of which a person has been
found guilty by any service tribunal of desertion or absence without
leave;
|
|
|
|
(c) any time during which a person was serving a sentence of
incarceration imposed by any court other than a service tribunal; and
|
|
|
|
(d) any period during which an accused person is unfit to stand trial
for an offence.
|
|
|
|
Clause 22: Section 70 reads as follows:
|
|
|
|
70. A service tribunal shall not try any person charged with any of
the following offences committed in Canada:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(d) sexual assault committed with a weapon or with threats to a third
party or causing bodily harm;
|
|
|
|
(e) aggravated sexual assault; or
|
|
|
|
(f) an offence under sections 280 to 283 of the Criminal Code.
|
|
|
|
Clause 23: The headings before section 72 read as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Clause 24: The relevant portion of section 73 reads as
follows:
|
|
|
|
73. Every officer in command of a vessel, aircraft, defence
establishment, unit or other element of the Canadian Forces who
|
|
|
|
|
|
|
|
is guilty of an offence and on conviction, if the officer acted traitorously,
shall suffer death, if the officer acted from cowardice, is liable to suffer
death or less punishment and, in any other case, is liable to dismissal
with disgrace from Her Majesty's service or to less punishment.
|
|
|
|
Clause 25: The relevant portion of section 74 reads as
follows:
|
|
|
|
74. Every person who
|
|
|
|
|
|
|
|
is guilty of an offence and on conviction, if the person acted traitorously,
shall suffer death and, in any other case, is liable, if the offence was com
mitted in action, to suffer death or less punishment or, if the offence was
committed otherwise than in action, to imprisonment for life or to less
punishment.
|
|
|
|
Clause 26: The relevant portion of section 75 reads as
follows:
|
|
|
|
75. Every person who
|
|
|
|
|
|
|
|
is guilty of an offence and on conviction, if the person acted traitorously,
shall suffer death and, in any other case, is liable to imprisonment for life
or to less punishment.
|
|
|
|
Clause 27: The relevant portion of section 76 reads as
follows:
|
|
|
|
76. Every person who
|
|
|
|
|
|
|
|
is guilty of an offence and on conviction, if the person acted traitorously,
shall suffer death and, in any other case, is liable to imprisonment for life
or to less punishment.
|
|
|
|
Clause 28: Sections 78 to 80 read as follows:
|
|
|
|
78. Every person who spies for the enemy is guilty of an offence and
on conviction is liable to suffer death or less punishment.
|
|
|
|
|
|
|
|
79. Every person who joins in a mutiny that is accompanied by
violence is guilty of an offence and on conviction is liable to suffer death
or less punishment.
|
|
|
|
80. Every person who joins in a mutiny that is not accompanied by
violence is guilty of an offence and on conviction is liable to
imprisonment for life or to less punishment or, in the case of a ringleader
of the mutiny, to suffer death or less punishment.
|
|
|
|
Clause 29: New.
|
|
|
|
Clause 30: Section 105 reads as follows:
|
|
|
|
105. Every officer who, while serving in one of Her Majesty's
Canadian ships involved in the convoying and protection of a vessel,
|
|
|
|
(a) fails to defend a vessel or goods under convoy,
|
|
|
|
(b) refuses to fight in the defence of a vessel in his convoy when it
is attacked, or
|
|
|
|
(c) cowardly abandons or exposes a vessel in his convoy to hazards,
|
|
|
|
is guilty of an offence and on conviction is liable to suffer death or less
punishment.
|
|
|
|
Clause 31: The relevant portion of section 117 reads
as follows:
|
|
|
|
117. Every person who
|
|
|
|
|
|
|
|
(b) improperly demands or accepts compensation, consideration or
personal advantage in respect of the performance of any military
duty or in respect of any matter relating to the Department, the
Canadian Forces or the Defence Research Board,
|
|
|
|
Clause 32: The heading before section 118 and
sections 118 and 119 read as follows:
|
|
|
|
|
|
|
|
118. (1) For the purposes of this section and section 119, ``service
tribunal'', in addition to the tribunals referred to in the definition
``service tribunal'' in section 2, includes a board of inquiry and a
commissioner taking evidence under this Act.
|
|
|
|
(2) Every person who
|
|
|
|
(a) being duly summoned or ordered to attend as a witness before a
service tribunal, makes default in attending,
|
|
|
|
(b) refuses to take an oath or make a solemn affirmation lawfully
required by a service tribunal to be taken or made,
|
|
|
|
(c) refuses to produce any document in the power or control of, and
lawfully required by a service tribunal to be produced by, that
person,
|
|
|
|
(d) refuses when a witness to answer any question to which a service
tribunal may lawfully require an answer,
|
|
|
|
(e) uses insulting or threatening language before, or causes any
interruption or disturbance in the proceedings of, a service tribunal,
or
|
|
|
|
(f) commits any other contempt of a service tribunal,
|
|
|
|
is guilty of an offence and on conviction is liable to imprisonment for
less than two years or to less punishment.
|
|
|
|
(3) Where an offence under this section is committed at or in relation
to a court martial, that court martial may, under the hand of the president,
issue an order that the offender undergo, for a period not exceeding
thirty days, a term of imprisonment or detention and, where any such
order is issued, the offender is not liable to any other proceedings under
the Code of Service Discipline in respect of the contempt in
consequence of which the order is issued.
|
|
|
|
119. Every person who, when examined on oath or solemn
affirmation before a service tribunal referred to in section 118,
knowingly gives false evidence, is guilty of an offence and on
conviction is liable to imprisonment for a term not exceeding seven
years or to less punishment.
|
|
|
|
Clause 33: (1) The relevant portion of subsection
130(1) reads as follows:
|
|
|
|
130. (1) An act or omission
|
|
|
|
(a) that takes place in Canada and is punishable under Part XII of this
Act, the Criminal Code or any other Act of Parliament, or
|
|
|
|
(b) that takes place outside Canada and would, if it had taken place
in Canada, be punishable under Part XII of this Act, the Criminal
Code or any other Act of Parliament,
|
|
|
|
(2) and (3) The relevant portion of subsection 130(2)
reads as follows:
|
|
|
|
(2) Subject to subsection (3), where a service tribunal convicts a
person under subsection (1), the service tribunal shall,
|
|
|
|
(a) if the conviction was in respect of an offence
|
|
|
|
(i) committed in Canada under Part XII of this Act, the Criminal
Code or any other Act of Parliament and for which a minimum
punishment is prescribed, or
|
|
|
|
|
|
|
|
impose a punishment in accordance with the enactment prescribing
the minimum punishment for the offence; or
|
|
|
|
|
|
|
|
(i) impose the punishment prescribed for the offence by Part XII
of this Act, the Criminal Code or that other Act, or
|
|
|
|
(4) Subsection 130(3) reads as follows:
|
|
|
|
(3) All provisions of the Code of Service Discipline in respect of a
punishment of death, imprisonment for two years or more,
imprisonment for less than two years, and a fine, apply in respect of
punishments imposed under paragraph (2)(a) or subparagraph
(2)(b)(i).
|
|
|
|
Clause 34: Subsection 132(3) reads as follows:
|
|
|
|
(3) All provisions of the Code of Service Discipline in respect of a
punishment of death, imprisonment for two years or more,
imprisonment for less than two years, and a fine, apply in respect of
punishments imposed under subsection (2).
|
|
|
|
Clause 35: Subsection 139(1) reads as follows:
|
|
|
|
139. (1) The following punishments may be imposed in respect of
service offences:
|
|
|
|
|
|
|
|
(b) imprisonment for two years or more,
|
|
|
|
(c) dismissal with disgrace from Her Majesty's service,
|
|
|
|
(d) imprisonment for less than two years,
|
|
|
|
(e) dismissal from Her Majesty's service,
|
|
|
|
|
|
|
|
|
|
|
|
(h) forfeiture of seniority,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and each of the punishments set out in paragraphs (b) to (l) shall be
deemed to be a punishment less than every punishment preceding it.
|
|
|
|
Clause 36: Section 140 reads as follows:
|
|
|
|
140. The punishment of imprisonment for two years or more or
imprisonment for less than two years is subject to the following
conditions:
|
|
|
|
(a) every person who, on conviction of a service offence, is liable to
imprisonment for life or for a term of years or other term may be
sentenced to imprisonment for a shorter term;
|
|
|
|
(b) a sentence that includes a punishment of imprisonment for two
years or more imposed on an officer shall be deemed to include a
punishment of dismissal with disgrace from Her Majesty's service,
whether or not the punishment of dismissal with disgrace is specified
in the sentence passed by the service tribunal;
|
|
|
|
(c) a sentence that includes a punishment of imprisonment for less
than two years imposed on an officer shall be deemed to include a
punishment of dismissal from Her Majesty's service, whether or not
the punishment of dismissal is specified in the sentence passed by the
service tribunal;
|
|
|
|
(d) where a service tribunal imposes a punishment of imprisonment
for two years or more on a non-commissioned member, the service
tribunal may in addition, notwithstanding any other provision of this
Part, impose a punishment of dismissal with disgrace from Her
Majesty's service;
|
|
|
|
(e) where a service tribunal imposes a punishment of imprisonment
for less than two years on a non-commissioned member, the service
tribunal may in addition, notwithstanding any other provision of this
Part, impose a punishment of dismissal from Her Majesty's service;
|
|
|
|
(f) in the case of a non-commissioned member above the rank of
private, a sentence that includes a punishment of imprisonment for
two years or more or imprisonment for less than two years shall be
deemed to include a punishment of reduction in rank to the lowest
rank to which under regulations the non-commissioned member can
be reduced, whether or not the punishment of reduction in rank is
specified in the sentence passed by the service tribunal; and
|
|
|
|
(g) a punishment of imprisonment for two years or more or
imprisonment for less than two years shall be deemed to be a
punishment of imprisonment with hard labour but, in the case of a
punishment of imprisonment for less than two years, the Minister or
such authorities as the Minister may prescribe or appoint for that
purpose may order that the punishment shall be without hard labour.
|
|
|
|
Clause 37: New.
|
|
|
|
Clause 38: Section 142 reads as follows:
|
|
|
|
142. The punishment of detention is subject to the following
conditions:
|
|
|
|
(a) detention shall not exceed two years and a person sentenced to
detention shall not be subject to detention for more than two years
consecutively by reason of more than one conviction;
|
|
|
|
(b) no officer may be sentenced to detention; and
|
|
|
|
(c) in the case of a non-commissioned member above the rank of
private, a sentence that includes a punishment of detention shall be
deemed to include a punishment of reduction in rank to the lowest
rank to which under regulations the non-commissioned member can
be reduced, whether or not the punishment of reduction in rank is
specified in the sentence passed by the service tribunal.
|
|
|
|
Clause 39: Sections 144 and 145 reads as follows:
|
|
|
|
144. Where a service tribunal imposes a punishment of forfeiture of
seniority on an officer or non-commissioned member, the service
tribunal shall in passing sentence specify the period for which seniority
is to be forfeited.
|
|
|
|
145. A fine shall be imposed in a stated amount and shall not exceed,
in the case of an officer or non-commissioned member, three months
basic pay, and, in the case of any other person, the sum of five hundred
dollars, and the terms of payment of a fine lie within the discretion of
the commanding officer of the person so punished.
|
|
|
|
Clause 40: The headings before section 154 read as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Clause 41: The relevant portion of section 156 reads
as follows:
|
|
|
|
156. Such officers and non-commissioned members as are
appointed under regulations for the purposes of this section may
|
|
|
|
(a) detain or arrest without a warrant any person who is subject to the
Code of Service Discipline, regardless of the rank or status of that
person, who has committed, is found committing, is believed on
reasonable grounds to have committed a service offence or who is
charged with having committed a service offence;
|
|
|
|
Clause 42: Sections 158 to 179 read as follows:
|
|
|
|
|
|
|
|
158. (1) A person arrested under this Act shall as soon as practicable
be released from custody by the person making the arrest unless that
person believes on reasonable grounds that it is necessary in the interest
of the public or the Canadian Forces that the person under arrest be
retained in custody having regard to all the circumstances, including
|
|
|
|
(a) the seriousness of the offence alleged to have been committed;
|
|
|
|
(b) the need to establish the identity of the person under arrest;
|
|
|
|
(c) the need to secure or preserve evidence of or relating to the
offence alleged to have been committed;
|
|
|
|
(d) the need to prevent the continuation or repetition of the offence
alleged to have been committed or the commission of any other
offence; and
|
|
|
|
(e) the necessity to ensure the safety of the person under arrest or any
other person.
|
|
|
|
(1.1) A person arrested under this Act, if that person is, in accordance
with this section, to be retained in custody, shall forthwith be placed in
service custody or civil custody or be taken to the unit or formation with
which the person is serving or to any other unit or formation of the
Canadian Forces, and such force as is reasonably necessary for the
purposes of this section may be used.
|
|
|
|
(2) An officer or non-commissioned member commanding a guard,
guard-room or safeguard or an officer or non-commissioned member
appointed under section 156 shall receive and keep a person who is
under arrest pursuant to this Act and who is committed to his custody,
but it shall be the duty of the officer, non-commissioned member or
other person who commits a person into custody to deliver at the time
of the committal, or as soon as practical and in any case within
twenty-four hours thereafter, to the officer or non-commissioned
member into whose custody that person is committed, an account in
writing, signed by the person making the committal, in which is stated
the reason why the person so committed is to be held in custody.
|
|
|
|
(3) An officer or non-commissioned member who, pursuant to
subsection (2), receives a person committed to his custody shall, as soon
as practicable and in any case within twenty-four hours thereafter, give
in writing to a commanding officer having authority to order the release
from custody of the person committed to custody, or to such other
officer as any such commanding officer may designate, a report setting
out the name of that person and an account of the offence alleged to have
been committed by that person so far as is known and the name and
rank, if any, of the person by whom the person so committed was placed
in custody, accompanied by any account in writing that has been
submitted pursuant to subsection (2).
|
|
|
|
(4) As soon as practicable after the receipt of the report referred to
in subsection (3), and in any case within twenty-four hours thereafter,
the commanding officer or other officer who received the report shall
direct that the person committed to custody be released forthwith unless
the commanding officer or other officer believes on reasonable grounds
that it is necessary that the person be retained in custody having regard
to all the circumstances, including those set out in paragraphs (1)(a) to
(e), and, in so doing, shall also have regard to any representations made
by the person committed to custody.
|
|
|
|
|
|
|
|
159. (1) Subject to subsection (1.1), where a person triable under the
Code of Service Discipline has been placed under arrest for a service
offence and remains in custody for eight days without a summary trial
having been held or a court martial for the trial of that person having
been ordered to assemble, a report stating the necessity for further delay
and the reasons for retaining the person in custody shall be made by the
commanding officer having authority to order the person's release from
custody to the authority who is empowered to convene a court martial
for the trial of the person, and a similar report shall be forwarded in the
same manner every eighth day until a summary trial has been held or a
court martial has been ordered to assemble.
|
|
|
|
(1.1) Unless the authority to whom the report referred to in
subsection (1) is made directs within fifteen days from the
commencement of custody that a person's retention in custody is to be
continued, the commanding officer referred to in subsection (1) shall,
on the expiration of those fifteen days, direct that the person be released
forthwith from custody.
|
|
|
|
(1.2) In deciding whether a person's retention in custody is to
continue or not, the authority to whom the report referred to in
subsection (1) is made shall have regard to all the circumstances,
including those set out in paragraphs 158(1)(a) to (e), and, in so doing,
shall also have regard to any representations made by the person
committed to custody.
|
|
|
|
(2) Every person held in custody in the circumstances described in
subsection (1) is, after that person has been so held for a total of
twenty-eight days without a summary trial having been held or a court
martial having been ordered to assemble, entitled to direct to the
Minister, or to such authority as the Minister may prescribe or appoint
for that purpose, a petition to be freed from custody or for a disposition
of the case.
|
|
|
|
(3) A person held in custody in the circumstances described in
subsection (1), when so held for a total of ninety days from the time of
the arrest of that person, shall be freed from custody in any event unless
the Minister otherwise directs or unless a summary trial has been held
or a court martial has been ordered to assemble.
|
|
|
|
(4) A person who has been freed from custody pursuant to
subsection (1.1), (2) or (3) shall not be subject to re-arrest for the offence
with which that person was originally charged, except on the written
order of an authority having power to convene a court martial for the
trial of that person.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
160. (1) Every reference in this Part to a commanding officer shall
be deemed to be a reference to the commanding officer of an accused
person or to such other officer as may, in accordance with regulations,
be empowered to act as the commanding officer of the accused person.
|
|
|
|
(2) Every reference in this Part to the rank of an officer or
non-commissioned member shall be construed in accordance with
regulations made by the Governor in Council and every such reference
shall be deemed to include a person who holds any equivalent relative
rank, whether that person is attached, seconded or on loan to the
Canadian Forces.
|
|
|
|
|
|
|
|
161. Where a charge is laid against a person to whom this Part applies
alleging that the person has committed a service offence, the charge
shall forthwith be investigated in accordance with regulations made by
the Governor in Council.
|
|
|
|
162. Where, after investigation, a commanding officer considers that
a charge should not be proceeded with, the commanding officer shall
dismiss the charge, but otherwise shall cause it to be proceeded with as
expeditiously as circumstances permit.
|
|
|
|
|
|
|
|
163. (1) A commanding officer may, in his discretion, try an accused
person by summary trial, but only if all of the following conditions are
satisfied:
|
|
|
|
(a) the accused person is either an officer cadet or a
non-commissioned member below the rank of warrant officer;
|
|
|
|
(b) having regard to the gravity of the offence, the commanding
officer considers that his powers of punishment are adequate;
|
|
|
|
(c) the commanding officer is not precluded from trying the accused
person by reason of his election, under regulations made by the
Governor in Council, to be tried by court martial;
|
|
|
|
(d) the offence is not one that, according to regulations made by the
Governor in Council, the commanding officer is precluded from
trying; and
|
|
|
|
(e) the commanding officer does not have reasonable grounds to
believe that the accused person is unfit to stand trial or was suffering
from a mental disorder at the time of the commission of the alleged
offence.
|
|
|
|
(1.1) Unless it is not practical, having regard to all the circumstances,
for any other commanding officer to conduct the summary trial, a
commanding officer may not preside at the summary trial of any person
charged with an offence where
|
|
|
|
(a) the commanding officer carried out or directly supervised the
investigation of that offence; or
|
|
|
|
(b) the summary trial relates to an offence in respect of which a
warrant was issued pursuant to section 273.3 by the commanding
officer.
|
|
|
|
(2) Subject to the conditions set out in this section and in Part V
relating to punishments, a commanding officer at a summary trial may
pass a sentence in which any one or more of the following punishments
may be included:
|
|
|
|
(a) detention for a period not exceeding ninety days subject to the
following provisions:
|
|
|
|
(i) a punishment of detention imposed by a commanding officer
on a non-commissioned member above the rank of private shall
not be carried into effect until approved by an approving
authority and is thereafter to be carried into effect only to the
extent so approved, and
|
|
|
|
(ii) where a commanding officer imposes more than thirty days
detention, the portion in excess of thirty days shall be effective
only if approved by, and to the extent approved by, an approving
authority,
|
|
|
|
(b) reduction in rank, but a punishment of reduction in rank imposed
by a commanding officer shall be effective only if approved by, and
to the extent approved by, an approving authority,
|
|
|
|
(c) forfeiture of seniority,
|
|
|
|
|
|
|
|
|
|
|
|
(f) a fine not exceeding basic pay for one month, and
|
|
|
|
|
|
|
|
and each of the punishments set out in paragraphs (b) to (g) shall be
deemed to be a punishment less than every punishment preceding it.
|
|
|
|
(3) In subsection (2), ``approving authority'' means
|
|
|
|
(a) any officer not below the rank of brigadier-general; or
|
|
|
|
(b) an officer not below the rank of colonel designated by the
Minister as an approving authority for the purposes of this section.
|
|
|
|
(4) A commanding officer may, subject to regulations made by the
Governor in Council and to such extent as the commanding officer
deems fit, delegate his powers under this section to any officer under his
command, but an officer to whom powers are so delegated may not be
authorized to impose punishments other than the following:
|
|
|
|
(a) detention not exceeding fourteen days;
|
|
|
|
|
|
|
|
|
|
|
|
(d) a fine not exceeding basic pay for fifteen days; and
|
|
|
|
|
|
|
|
(5) Where a commanding officer tries an accused person by
summary trial, the evidence shall be taken on oath if the commanding
officer so directs or the accused person so requests, and the
commanding officer shall inform the accused person of that person's
right so to request.
|
|
|
|
(6) Such punishments as are, in regulations made by the Governor
in Council, specified as requiring approval before they may be imposed
by a commanding officer shall not be so imposed until approval has
been obtained in the manner prescribed in those regulations.
|
|
|
|
|
|
|
|
164. (1) An officer of or above the rank of brigadier-general, or any
other officer prescribed or appointed by the Minister for that purpose,
referred to in this section as a ``superior commander'', may, in his
discretion, try by summary trial an officer below the rank of
lieutenant-colonel or a non-commissioned member above the rank of
sergeant, charged with having committed a service offence.
|
|
|
|
(2) The Governor in Council may extend the provisions of this
section to cases where the accused person is of the rank of
lieutenant-colonel.
|
|
|
|
(3) A superior commander may, with or without hearing the
evidence, dismiss a charge if the superior commander considers that it
should not be proceeded with, but otherwise shall cause it to be
proceeded with as expeditiously as circumstances permit.
|
|
|
|
(4) Subject to the conditions set out in this section and in Part V
relating to punishments, a superior commander at a summary trial may
pass a sentence in which any one or more of the following punishments
may be included:
|
|
|
|
(a) forfeiture of seniority;
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5) A superior commander shall not try an accused person where
|
|
|
|
(a) the accused person, by reason of an election under regulations
made by the Governor in Council, is entitled to be tried by court
martial; or
|
|
|
|
(b) the superior commander has reasonable grounds to believe that
the accused person is unfit to stand trial or was suffering from a
mental disorder at the time of the commission of the alleged offence.
|
|
|
|
(6) Where a superior commander tries an accused person by
summary trial, the evidence shall be taken on oath if the superior
commander so directs or the accused person so requests, and the
superior commander shall inform the accused person of that person's
right so to request.
|
|
|
|
|
|
|
|
165. The Minister, and such other authorities as the Minister may
prescribe or appoint for that purpose, may convene General Courts
Martial and Disciplinary Courts Martial.
|
|
|
|
165.1 (1) Where a court martial is convened under section 165, an
officer who is designated by or pursuant to regulations made by the
Governor in Council shall appoint the president and other members of
the court martial.
|
|
|
|
(2) An authority referred to in section 165 is not eligible to be
designated for the purposes of subsection (1).
|
|
|
|
(3) Any officer of the Canadian Forces and any officer of any armed
forces who is attached, seconded or on loan to the Canadian Forces may
be appointed under subsection (1) as a member of a General Court
Martial or Disciplinary Court Martial.
|
|
|
|
|
|
|
|
166. A General Court Martial may try any person who under Part IV
is liable to be charged, dealt with and tried on a charge of having
committed any service offence.
|
|
|
|
167. A General Court Martial shall consist of five officers.
|
|
|
|
168. (1) The president of a General Court Martial shall be an officer
of or above the rank of colonel.
|
|
|
|
(2) Where the accused person is of or above the rank of
brigadier-general, the president of a General Court Martial shall be an
officer of or above the rank of the accused person, and the other
members of the court martial shall be of or above the rank of colonel.
|
|
|
|
(3) Where the accused person is of the rank of colonel, all of the
members of a General Court Martial, other than the president, shall be
of or above the rank of lieutenant-colonel.
|
|
|
|
(4) Where the accused person is a lieutenant-colonel, at least two of
the members of a General Court Martial, other than the president, shall
be of or above the rank of the accused person.
|
|
|
|
169. Such authority as is prescribed for that purpose in regulations
shall appoint a person to officiate as judge advocate at a General Court
Martial.
|
|
|
|
170. None of the following persons shall sit as a member of a General
Court Martial:
|
|
|
|
(a) the officer who convened the court martial;
|
|
|
|
(a.1) the officer who appointed the members of the court martial;
|
|
|
|
|
|
|
|
(c) a witness for the prosecution;
|
|
|
|
(d) the commanding officer of the accused person;
|
|
|
|
|
|
|
|
(g) an officer below the rank of captain; or
|
|
|
|
(h) any person who, prior to the court martial, participated in any
investigation respecting the matters on which a charge against the
accused person is founded.
|
|
|
|
|
|
|
|
171. Subject to any limitations prescribed in regulations made by the
Governor in Council, a Disciplinary Court Martial may try any person
who under Part IV is liable to be charged, dealt with and tried on a charge
of having committed any service offence.
|
|
|
|
172. A Disciplinary Court Martial shall not pass a sentence including
a punishment higher in the scale of punishments than dismissal with
disgrace from Her Majesty's service or higher than such other
punishment as may be prescribed in regulations, but no such other
punishment shall be higher in the scale of punishments than dismissal
with disgrace from Her Majesty's service.
|
|
|
|
173. A Disciplinary Court Martial shall consist of three officers.
|
|
|
|
174. The president of a Disciplinary Court Martial shall be an officer
of or above the rank of major or of or above such higher rank as may be
prescribed in regulations.
|
|
|
|
175. Such authority as may be prescribed for that purpose in
regulations shall appoint a person to officiate as judge advocate at a
Disciplinary Court Martial.
|
|
|
|
176. None of the following persons shall sit as a member of a
Disciplinary Court Martial:
|
|
|
|
(a) the officer who convened the court martial;
|
|
|
|
(a.1) the officer who appointed the members of the court martial;
|
|
|
|
|
|
|
|
(c) a witness for the prosecution;
|
|
|
|
(d) the commanding officer of the accused person;
|
|
|
|
(e) a provost officer; or
|
|
|
|
(g) any person who, prior to the court martial, participated in any
investigation respecting the matters on which a charge against the
accused person is founded.
|
|
|
|
|
|
|
|
177. (1) The Governor in Council may establish Standing Courts
Martial and each such court martial shall consist of one officer, to be
called the president, appointed by or under the authority of the Minister,
who is or has been a barrister or advocate of more than three years
standing.
|
|
|
|
(2) Subject to any limitations prescribed in regulations, a Standing
Court Martial may try any person who under Part IV is liable to be
charged, dealt with and tried on a charge of having committed a service
offence, but a Standing Court Martial shall not pass a sentence including
any punishment higher in the scale of punishments than imprisonment
for less than two years.
|
|
|
|
|
|
|
|
178. (1) Notwithstanding anything in this Act, where a person other
than an officer or non-commissioned member is to be tried by a court
martial, the person may be tried by a Special General Court Martial
consisting of a person, designated by the Minister, who is or has been
a judge of a superior court in Canada or is a barrister or advocate of at
least ten years standing.
|
|
|
|
(2) Subject to such modifications and additions as the Governor in
Council may prescribe, the provisions of this Act and the regulations
relating to trials of accused persons by General Courts Martial and to
their conviction, sentence and punishment are applicable to trials by a
Special General Court Martial established under this section, and to the
conviction, sentence and punishment of persons tried by a Special
General Court Martial so established.
|
|
|
|
|
|
|
|
179. In any proceedings before a service tribunal, the accused person
has the right to be represented in such manner as is prescribed in
regulations made by the Governor in Council.
|
|
|
|
Clause 43: (1) to (4) Section 180 reads as follows:
|
|
|
|
180. (1) Subject to subsections (2) and (3), courts martial shall be
public and, to the extent that accommodation permits, the public shall
be admitted to the trial.
|
|
|
|
(2) Where the president of a court martial considers that it is
expedient in the interests of public safety, defence or public morals that
the public should be excluded during the whole or any part of a trial, the
president may make an order to that effect, and the order shall be
recorded in the minutes of the proceedings of the court martial.
|
|
|
|
(3) Witnesses, other than the prosecutor and the accused person and
his representative, shall not be admitted to a trial by court martial, except
when under examination or by specific leave of the president of the
court martial.
|
|
|
|
(4) The president of a court martial may, on any deliberation among
the members, cause the court martial to be cleared of any other persons
in accordance with regulations.
|
|
|
|
Clause 44: Subsections 183(1) to (3) read as follows:
|
|
|
|
183. (1) The commanding officer of an accused person, the authority
that convenes a court martial or, after the assembly of the court martial,
the president shall take all necessary action to procure the attendance of
the witnesses whom the prosecutor and the accused person request to
be called and whose attendance can, having regard to the exigencies of
the service, reasonably be procured, but nothing in this subsection
requires the procurement of the attendance of any witnesses, the request
for whose attendance is deemed by any such commanding officer,
authority or president to be frivolous or vexatious.
|
|
|
|
(2) Where any commanding officer, authority or president referred
to in subsection (1) deems to be frivolous or vexatious a request by the
accused person for the attendance of a witness whose attendance,
having regard to the exigencies of the service, can reasonably be
procured, the attendance of that witness shall be procured if the accused
person pays in advance the fees and expenses of the witness at the rates
prescribed in regulations.
|
|
|
|
(3) Where the evidence of a witness whose attendance is procured
pursuant to subsection (2) proves to be relevant and material at the trial,
the president of the court martial or the authority that convened the court
martial shall order that the accused person be reimbursed in the amount
of the fees and expenses of the witness so paid.
|
|
|
|
Clause 45: (1) Subsection 184(1) reads as follows:
|
|
|
|
184. (1) Where it appears to the Judge Advocate General, or to such
person as the Judge Advocate General may appoint for that purpose,
|
|
|
|
(a) that the attendance of a witness for the prosecution at a trial by
court martial is not readily obtainable because the witness is ill or is
absent from the country in which the trial is held, or that the
attendance of a witness for the accused person is not readily
obtainable for any reason, or
|
|
|
|
(b) that the attendance of a witness for the prosecution at a trial by
court martial in any place outside Canada is not readily obtainable
and under the law of that place there is no provision for compulsory
attendance of that witness at the court martial,
|
|
|
|
the Judge Advocate General, or such person as the Judge Advocate
General may appoint for that purpose, may appoint any officer or other
qualified person, in this section referred to as a ``commissioner'', to take
the evidence of the witness under oath.
|
|
|
|
(2) Subsection 184(3) reads as follows:
|
|
|
|
(3) Where, in the opinion of the president of a court martial, a witness
whose evidence has been taken on commission should, in the interests
of justice, appear and give evidence before the court martial and that
witness is not too ill to attend the trial and is not outside the country in
which the trial is held, the president may require the attendance of that
witness.
|
|
|
|
Clause 46: The heading before section 186 and
sections 186 to 194 read as follows:
|
|
|
|
|
|
|
|
186. A court martial may, where the president considers it necessary,
view any place, thing or person.
|
|
|
|
|
|
|
|
187. (1) When a court martial is assembled, the names of the
president and other members and of the judge advocate shall be read to
the accused person and the prosecutor, who shall then be asked if they
object to the trial being conducted by any of them and, in the event of
any such objection, the decision of whether to allow the objection shall
be made in accordance with the procedure prescribed in regulations.
|
|
|
|
(2) The procedure for the replacement of a president or other
member or of a judge advocate in respect of whom an objection has
been allowed shall be as prescribed in regulations.
|
|
|
|
|
|
|
|
188. (1) At every court martial, an oath shall be administered to each
of the following persons:
|
|
|
|
(a) the president and other members of the court martial,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in the manner and in the forms prescribed in regulations.
|
|
|
|
(2) If a person to whom an oath is required to be administered under
subsection (1)
|
|
|
|
(a) objects to take the oath and the president of the court martial is
satisfied of the sincerity of the objection, or
|
|
|
|
(b) is objected to as incompetent to take the oath and the president
of the court martial is satisfied that the oath would have no binding
effect on the conscience of that person,
|
|
|
|
the president shall require that person, instead of being sworn, to make
a solemn affirmation in the form prescribed in regulations and, for the
purposes of this Act, a solemn affirmation shall be deemed to be an oath.
|
|
|
|
|
|
|
|
189. A court martial may be adjourned whenever the president
considers adjournment desirable.
|
|
|
|
190. (1) Where, after the commencement of a trial by court martial,
the court martial is by death or otherwise reduced below the number of
members required by this Act, the court martial shall be deemed to be
dissolved.
|
|
|
|
(2) Where, on account of the illness of an accused person, it is
impossible to continue the trial by court martial of that person, the court
martial shall be dissolved.
|
|
|
|
(3) Where a court martial finds, pursuant to subsection 198(2), that
an accused person is unfit to stand trial and it completes the proceedings
under subsection 200(2), the court martial shall be dissolved.
|
|
|
|
(4) Where a court martial is dissolved pursuant to this section, the
accused person may be dealt with as if the trial had never commenced.
|
|
|
|
|
|
|
|
191. (1) Where, at any time during a trial by court martial, it appears
to the president of the court martial that there is a technical defect in a
charge that does not affect the substance of the charge, the president, if
of the opinion that the accused person will not be prejudiced in the
conduct of his defence by an amendment of the charge, shall make such
order for the amendment of the charge as the president considers
necessary to meet the circumstances of the case.
|
|
|
|
(2) Where a charge is amended during a trial by court martial, the
president of the court martial shall, if the accused person so requests,
adjourn the court martial for such period as the president considers
necessary to enable the accused person to meet the charge so amended.
|
|
|
|
(3) Where a charge is amended during a trial by court martial, a
minute of the amendment shall be endorsed on the charge sheet and
signed by the president of the court martial and, for the purposes of the
trial and all proceedings in connection therewith, the charge sheet so
amended shall be treated as being the original charge sheet.
|
|
|
|
|
|
|
|
192. (1) Subject to this section and section 193, the finding and
sentence of a court martial and its decision in respect of any other matter
or question arising after the commencement of the trial shall be
determined by the vote of a majority of the members.
|
|
|
|
(2) In the case of an equality of votes of the members of a court
martial on the finding, the accused person shall be found not guilty.
|
|
|
|
(3) A judge advocate appointed to officiate at a court martial may
determine questions of law or mixed law and fact arising before or after
the commencement of the trial.
|
|
|
|
193. (1) Where the only punishment that a court martial can impose
for an offence is death, a finding of guilty shall not be made except with
the concurrence of all the members of the court martial and, where there
is no such concurrence and no finding is made, the president of the court
martial shall so report to the authority that convened the court martial,
which shall thereupon be deemed to be dissolved, and the accused
person may be tried again.
|
|
|
|
(2) Where the imposition of a punishment of death is not mandatory,
a court martial shall not impose the punishment of death except with the
concurrence of all the members.
|
|
|
|
|
|
|
|
194. Where a person found guilty at a trial by court martial admits
service offences similar in character to the offence of which the person
is found guilty, the court martial may, at the person's request and in its
discretion, take those service offences into consideration, for the
purposes of sentence, as if the person had been charged with, tried for
and found guilty of those service offences, but the sentence of the court
martial shall not include any punishment higher in the scale of
punishments than the punishment that might be imposed in respect of
any offence of which the person is found guilty.
|
|
|
|
Clause 47: Section 196 and the heading before it read
as follows:
|
|
|
|
|
|
|
|
196. Where a court martial has found a person guilty of an offence
for which the punishment of death is mandatory under section 73, 74,
75 or 76, for which the punishment of dismissal with disgrace from Her
Majesty's service or dismissal from Her Majesty's service is mandatory
under section 92 or to which paragraph 130(2)(a) applies, the court
martial may recommend clemency and the recommendation shall be
attached to and form part of the minutes of the proceedings of the trial.
|
|
|
|
Clause 48: The headings before section 197 read as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Clause 49: Subsections 202.1(1) to (3) read as
follows:
|
|
|
|
202.1 (1) Where a Review Board or the chairperson of a Review
Board, in exercising a power under section 202.25, orders that the
accused person be sent back to a court martial for trial of the issue of
whether the accused person is fit to stand trial, the Review Board or
chairperson shall, forthwith after making the order, cause a copy of it to
be sent to the authority that convened the court martial that found the
accused person unfit to stand trial.
|
|
|
|
(2) On receipt of a copy of an order made pursuant to subsection (1),
the authority that convened the court martial shall convene a court
martial to try the issue and make a finding of whether the accused person
is fit to stand trial and, where the court martial finds the accused person
fit, to try the accused person as if the issue had never arisen.
|
|
|
|
(3) Notwithstanding the opinion of a Review Board or the
chairperson of a Review Board that an accused person is fit to stand trial,
the convening authority may order the accused person to be detained in
custody in a hospital or other appropriate place until a court martial
makes a finding under subsection (2), where the convening authority
has reasonable grounds to believe that the accused person will become
unfit to stand trial unless so detained.
|
|
|
|
Clause 50: Subsection 202.12(1) reads as follows:
|
|
|
|
202.12 (1) Where a finding of unfit to stand trial is made by a court
martial in respect of an accused person, the authority that convened the
court martial or a convening authority designated by the Chief of the
Defence Staff shall direct that a Standing Court Martial, where the
accused person is an officer or a non-commissioned member, or a
Special General Court Martial in any other case, hold an inquiry and
determine whether sufficient admissible evidence can be adduced at
that time to put the accused person on trial
|
|
|
|
(a) not later than two years after that finding and every two years
thereafter until the accused person is tried, or found not guilty in
respect of the offence; or
|
|
|
|
(b) at such other time as the authority may order, where the authority
is satisfied on the basis of an application and any other written
material submitted by the accused person that there is reason to
doubt that there is a prima facie case against the accused person.
|
|
|
|
Clause 51: (1) to (3) The relevant portion of
subsection 202.14(2) reads as follows:
|
|
|
|
(2) Where a finding of not responsible on account of mental disorder
is made, the accused person shall not be found guilty or convicted of the
offence, but
|
|
|
|
|
|
|
|
(c) any service tribunal or the Court Martial Appeal Court may
consider the finding in considering an application for release
pending appeal under Part IX.1 or in considering the dispositions to
make or sentence to impose against that person for any other offence;
|
|
|
|
(d) the finding may be considered in determining, pursuant to
subsection 163(6) or 206(1) or (2), whether to approve any sentence
imposed against that person for any other offence;
|
|
|
|
(e) the finding may be considered in determining, pursuant to Part
VI, whether to release that person from custody;
|
|
|
|
(f) the finding may be considered in determining, pursuant to section
211 or 212, whether to substitute, mitigate, commute or remit a
punishment included in a sentence imposed against that person for
any other offence;
|
|
|
|
Clause 52: The relevant portion of subsection
202.17(1) reads as follows:
|
|
|
|
202.17 (1) An accused person shall not be placed in custody
pursuant to an assessment order made under this Part unless
|
|
|
|
Clause 53: Subsection 202.18(1) reads as follows:
|
|
|
|
202.18 (1) During the period that an assessment order made under
this Part is in force, no order may be made for custody or release from
custody of the accused person under any provision of Part VI or for
release from detention or imprisonment under any provision of Part
IX.1 in respect of that offence or an included offence.
|
|
|
|
Clause 54: The relevant portion of section 202.26
reads as follows:
|
|
|
|
202.26 Sections 672.64 to 672.71 and 672.79 and subsections
672.8(1) and (2) of the Criminal Code apply, with such modifications
as the circumstances require, to findings made by courts martial under
this Act of unfit to stand trial or not responsible on account of mental
disorder, and
|
|
|
|
|
|
|
|
(d) a reference in section 754 of the Criminal Code to the Attorney
General of the province in which the accused person was tried is
deemed to be a reference to the authority that convened the court
martial;
|
|
|
|
Clause 55: Section 203 and the headings before it read
as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
203. The execution of a punishment of death under this Act, whether
the sentence was passed in Canada or elsewhere, shall be as prescribed
by regulations made by the Governor in Council and, without limiting
the generality of the foregoing, the regulations may make provision for
|
|
|
|
(a) the custody and treatment of the person under sentence and the
removal of that person from one place or establishment to another
between the passing of the sentence and the execution of the
punishment; and
|
|
|
|
(b) the manner in which, the person by whom and the country or
territory, place and kind of establishment where the punishment is to
be executed.
|
|
|
|
Clause 56: The heading before section 204 reads as
follows:
|
|
|
|
|
|
|
|
Clause 57: Subsections 204(1) and (2) read as follows:
|
|
|
|
204. (1) Subject to subsection (3) and sections 214 to 218, the term
of a punishment of imprisonment for two years or more, imprisonment
for less than two years or detention shall commence on the date on
which the service tribunal pronounces sentence on the offender.
|
|
|
|
(2) The only time that shall be reckoned toward the completion of a
term of a punishment of imprisonment for two years or more,
imprisonment for less than two years or detention shall be the time that
the offender spends in civil custody or service custody while under the
sentence in which that punishment is included.
|
|
|
|
Clause 58: New.
|
|
|
|
Clause 59: The heading before section 206 and
sections 206 to 214 read as follows:
|
|
|
|
|
|
|
|
206. (1) A punishment of death imposed by a court martial is subject
to approval by the Governor in Council and shall not be carried out
unless so approved.
|
|
|
|
(2) A punishment of dismissal with disgrace from Her Majesty's
service or of dismissal from Her Majesty's service, whether it is
expressly included in the sentence passed by a service tribunal or
whether it is deemed to be included in the sentence pursuant to
paragraph 140(b) or (c), is subject to approval by the Minister or such
authorities as are prescribed in regulations and that punishment shall not
be carried out unless so approved.
|
|
|
|
(3) Any punishment of imprisonment for two years or more,
imprisonment for less than two years or detention included in the
sentence referred to in subsection (2) shall commence and be carried out
pursuant to section 204 as if the sentence had not included a punishment
of dismissal with disgrace from Her Majesty's service or dismissal from
Her Majesty's service, as the case may be.
|
|
|
|
(4) A punishment of dismissal with disgrace from Her Majesty's
service or dismissal from Her Majesty's service shall be deemed to be
carried out as of the date on which the release of the offender from the
Canadian Forces is effected.
|
|
|
|
207. An authority referred to in section 211 has power to substitute
a new punishment for
|
|
|
|
(a) a punishment of death that has not been approved under
subsection 206(1);
|
|
|
|
(b) a punishment of dismissal with disgrace from Her Majesty's
service or dismissal from Her Majesty's service that has not been
approved under subsection 206(2); or
|
|
|
|
(c) a punishment, imposed by a commanding officer at a summary
trial, that has not been approved under subsection 163(2) or (6), as
the case may be.
|
|
|
|
|
|
|
|
208. (1) The Minister, and such other authorities as the Minister may
prescribe or appoint for that purpose, may quash any finding of guilty
made by a service tribunal.
|
|
|
|
(2) Where, after a finding of guilty has been quashed under
subsection (1), no other finding of guilty remains, the whole of the
sentence passed by the service tribunal ceases to have force and effect.
|
|
|
|
(3) Where, after a finding of guilty has been quashed under
subsection (1), another finding of guilty remains, and any punishment
included in the sentence passed by the service tribunal is in excess of the
punishment authorized by this Act in respect of the remaining finding
of guilty or is, in the opinion of the authority that made the decision to
quash, unduly severe, the authority shall, subject to the conditions set
out in section 213, substitute such new punishment or punishments as
the authority considers appropriate.
|
|
|
|
|
|
|
|
209. (1) The Minister, and such other authorities as the Minister may
prescribe or appoint for that purpose, may
|
|
|
|
(a) substitute a new finding for any finding of guilty that is made by
a service tribunal and that is illegal or cannot be supported by the
evidence, if the new finding could validly have been made by the
service tribunal on the charge and if it appears that the service
tribunal was satisfied of the facts establishing the offence specified
or involved in the new finding; or
|
|
|
|
(b) substitute for a finding of guilty made by a service tribunal a new
finding of guilty of an offence, other than that of which the tribunal
found the offender guilty, if
|
|
|
|
(i) the tribunal could on the charge have found the offender guilty
under section 133, 134 or 136 of the other offence, or
|
|
|
|
(ii) the tribunal could have found the offender guilty of the other
offence on any alternative charge that was laid,
|
|
|
|
and it appears that the facts proved the offender guilty of the other
offence.
|
|
|
|
(2) Where a new finding has been substituted for a finding made by
a service tribunal and any punishment included in the sentence passed
by the service tribunal is in excess of the punishment authorized by this
Act in respect of the new finding or is, in the opinion of the authority that
substituted the new finding, unduly severe, the authority shall, subject
to the conditions set out in section 213, substitute such new punishment
or punishments as it considers appropriate.
|
|
|
|
|
|
|
|
210. (1) Where a service tribunal has found a person guilty of an
offence and the Judge Advocate General certifies that in the opinion of
the Judge Advocate General a new trial is advisable by reason of an
irregularity in law in the proceedings before the service tribunal, the
Minister may set aside the finding of guilty and direct a new trial, in
which case that person shall be tried again on any appropriate charge as
if no previous trial had been held.
|
|
|
|
(2) Where, at a new trial held pursuant to this section or section 248,
a person is found guilty,
|
|
|
|
(a) the new punishment shall not be higher in the scale of
punishments than the punishment imposed by the service tribunal in
the first instance;
|
|
|
|
(b) if the new punishment includes a term of incarceration, there
shall be deducted from that term any time during which that person
had been incarcerated following the pronouncement of the previous
sentence; and
|
|
|
|
(c) if the new punishment is in the same paragraph in the scale of
punishments as the punishment imposed by the service tribunal in
the first instance, the new punishment shall not be in excess of the
previous punishment.
|
|
|
|
(3) The Minister may dispense with any new trial directed under this
section or section 238, 239.1, 239.2, 240.2 or 245.
|
|
|
|
|
|
|
|
211. Where a service tribunal has passed a sentence in which is
included an illegal punishment, the Minister, and such other authorities
as the Minister may prescribe or appoint for that purpose, may, subject
to the conditions set out in section 213, substitute for the illegal
punishment such new punishment or punishments as the authority
making the substitution considers appropriate.
|
|
|
|
|
|
|
|
212. The Minister, and such other authorities as the Minister may
prescribe or appoint for that purpose, may, subject to the conditions set
out in section 213, mitigate, commute or remit any or all of the
punishments included in a sentence passed by a service tribunal.
|
|
|
|
|
|
|
|
213. The following conditions apply where under this Act a new
punishment, by way of substitution or commutation, replaces a
punishment imposed by a service tribunal:
|
|
|
|
(a) the new punishment shall not be any punishment that could not
legally have been imposed by the service tribunal on the charges of
which the offender was found guilty and in respect of which the
findings have not been quashed or set aside by way of substitution;
|
|
|
|
(b) the new punishment shall not be higher in the scale of
punishments than the punishment imposed by the service tribunal in
the first instance and, if the sentence passed by the service tribunal
included a punishment of incarceration, the new punishment shall
not involve a period of incarceration exceeding the period of
incarceration included in that sentence;
|
|
|
|
(c) where the new punishment is detention and the punishment that
it replaces is imprisonment for two years or more or imprisonment
for less than two years, the term of the detention after the date of
alteration shall in no case exceed the term of the imprisonment
remaining to be served and, in any event, shall not exceed a term of
two years; and
|
|
|
|
(d) where the offence of which a person has been found guilty by a
service tribunal is an offence for which the punishment of death is
mandatory under section 73, 74, 75 or 76, for which the punishment
of dismissal with disgrace from Her Majesty's service or dismissal
from Her Majesty's service is mandatory under section 92 or to
which paragraph 130(2)(a) applies, the punishment may, subject to
this section, be altered to any one or more of the punishments lower
in the scale of punishments than the punishment provided for in that
section or any other enactment prescribing the offence.
|
|
|
|
|
|
|
|
214. Where, under the authority of this Act, a new punishment, by
reason of substitution or commutation, replaces a punishment imposed
by a service tribunal, the new punishment has force and effect as if it had
been imposed by the service tribunal in the first instance and the
provisions of the Code of Service Discipline apply accordingly but,
where the new punishment involves incarceration, the term of the new
punishment shall be reckoned from the date of substitution or
commutation, as the case may be.
|
|
|
|
Clause 60: Sections 215 and 216 reads as follows:
|
|
|
|
215. (1) Where an offender has been sentenced to imprisonment for
two years or more, imprisonment for less than two years or detention,
the carrying into effect of the punishment may be suspended by the
Minister, or such other authorities as the Minister may prescribe or
appoint for that purpose.
|
|
|
|
(2) In this section and sections 216 to 218, ``suspending authority''
means the Minister or any authority prescribed or appointed under
subsection (1).
|
|
|
|
(3) Where, in the case of an offender on whom any punishment
referred to in subsection (1) has been imposed, suspension of the
punishment has been recommended, the authority empowered to
commit the offender to a penitentiary, civil prison, service prison or
detention barrack, as the case may be, may postpone committal until
directions of a suspending authority have been obtained.
|
|
|
|
216. (1) A suspending authority may, in the case of an offender on
whom any punishment referred to in subsection 215(1) has been
imposed, suspend the punishment whether or not the offender has
already been committed to undergo that punishment.
|
|
|
|
(2) Where a punishment is suspended before committal to undergo
the punishment, the offender shall, if in custody, be discharged from
custody and the term of the punishment shall not commence until the
offender has been ordered to be committed to undergo that punishment.
|
|
|
|
(3) Where a punishment is suspended after committal to undergo the
punishment, the offender shall be discharged from the place in which he
is incarcerated and the currency of the punishment shall be arrested after
the day of that discharge until the offender is again ordered to be
committed to undergo that punishment.
|
|
|
|
Clause 61: Subsection 217(3) reads as follows:
|
|
|
|
(3) A punishment of detention not exceeding thirty days that has
been suspended shall be deemed to be wholly remitted on the expiration
of one year commencing on the day the suspension was ordered, unless
the punishment has been put into execution prior to the expiration of
that period.
|
|
|
|
Clause 62: Subsection 220(1) reads as follows:
|
|
|
|
220. (1) A service convict whose punishment of imprisonment for
two years or more is to be put into execution shall as soon as practicable
be committed to a penitentiary to undergo punishment according to law,
except that a committing authority may, in accordance with regulations
made by the Governor in Council, order that a service convict be
committed to a service prison to undergo the punishment or part thereof.
|
|
|
|
Clause 63: Subsection 222(2) reads as follows:
|
|
|
|
(2) Where the punishment of a service convict undergoing
punishment in a penitentiary or a service prisoner undergoing
punishment in a civil prison is not suspended, mitigated, commuted or
remitted under this Act within six months after the date of the committal
of that convict or prisoner to that penitentiary or civil prison, the
National Parole Board has, notwithstanding anything in this Act but
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.
|
|
|
|
Clause 64: The relevant portion of subsection 226(3)
reads as follows:
|
|
|
|
(3) A person who has been found guilty of an offence by a civil court
in Canada shall not,
|
|
|
|
|
|
|
|
(b) if sentenced by the civil court to a term of two years or more, be
transferred under subsection (1) without the consent of the Attorney
General of Canada.
|
|
|
|
Clause 65: Section 227 and the heading before it read
as follows:
|
|
|
|
|
|
|
|
227. (1) Where a person is convicted of an offence under the Code
of Service Discipline, the service tribunal shall order that any property
obtained by the commission of the offence shall be restored to the
person apparently entitled to it if, at the time of the trial, the property is
before the service tribunal or has been detained so that it can be
immediately restored under the order to the person so entitled.
|
|
|
|
(2) Where an accused person is tried for an offence but is not
convicted and it appears to the service tribunal that an offence has been
committed, the service tribunal may order that any property obtained by
the commission of the offence shall be restored to the person apparently
entitled to it if, at the time of the trial, the property is before the service
tribunal or has been detained so that it can be immediately restored
under the order to the person so entitled.
|
|
|
|
(3) An order shall not be made under this section in respect of
|
|
|
|
(a) property to which an innocent purchaser for value has acquired
lawful title;
|
|
|
|
(b) a valuable security that has been paid or discharged in good faith
by a person who was liable to pay or discharge it; or
|
|
|
|
(c) a negotiable instrument that has, in good faith, been taken or
received by transfer or delivery for valuable consideration by a
person who had no notice and no reasonable cause to suspect that an
offence had been committed.
|
|
|
|
(4) An order made under this section shall be executed by the persons
by whom the process of the service tribunal is ordinarily executed.
|
|
|
|
Clause 66: The headings before section 228 read as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Clause 67: Section 229 reads as follows:
|
|
|
|
229. Nothing in this Part is in derogation of the powers conferred
under Part VIII to quash findings or alter findings and sentences.
|
|
|
|
Clause 68: The relevant portion of subsection 238(3)
reads as follows:
|
|
|
|
(3) Where the Court Martial Appeal Court has set aside a finding of
guilty but another finding of guilty remains, the Court may, except
where it allows an appeal under section 240.1,
|
|
|
|
|
|
|
|
(b) subject to section 213, substitute for the sentence imposed by the
court martial a sentence that is warranted in law.
|
|
|
|
Clause 69: The relevant portion of subsection 239(2)
reads as follows:
|
|
|
|
(2) On the substitution of a finding of guilty under subsection (1), the
Court Martial Appeal Court may, except where it allows an appeal under
section 240.1,
|
|
|
|
|
|
|
|
(b) subject to section 213, substitute for the sentence imposed by the
court martial a sentence that is warranted in law.
|
|
|
|
Clause 70: Section 240 reads as follows:
|
|
|
|
240. On the hearing of an appeal respecting the legality of a sentence
imposed by a court martial, the Court Martial Appeal Court, if it allows
the appeal, may, subject to section 213, substitute for the sentence
imposed by the court martial a sentence that is warranted in law.
|
|
|
|
Clause 71: Section 241.2 reads as follows:
|
|
|
|
241.2 Section 214 applies to a new punishment included in a
sentence substituted under subsections 238(3), 239(2) and 239.1(3) and
sections 240 and 240.1.
|
|
|
|
Clause 72: (1) and (2) The relevant portion of
subsection 244(1) reads as follows:
|
|
|
|
244. (1) The Chief Justice of the Court Martial Appeal Court may,
with the approval of the Governor in Council, make rules respecting
|
|
|
|
|
|
|
|
(g) the circumstances in which, on the hearing of an appeal, the
appellant may attend or appear before the Court but, in the case of
an appeal from a sentence of death, no such rule shall deprive the
appellant of the right to be present on the hearing of the appeal;
|
|
|
|
(h) provision for and payment of fees of counsel for an appellant; and
|
|
|
|
Clause 73: The heading before section 246 and
sections 246 to 248 read as follows:
|
|
|
|
|
|
|
|
246. On the expiration of the period referred to in subsection 232(3)
within which an appeal from the finding or sentence of a court martial
may be made, the Judge Advocate General shall, in respect of any
matter referred to in paragraph 230(b) or (c) on which an appeal has not
been made, review the proceedings of the court martial.
|
|
|
|
247. Where, on the review under section 246, the Judge Advocate
General certifies that any finding or punishment is illegal, the Judge
Advocate General shall refer the minutes of the proceedings of the court
martial to the Chief of the Defence Staff for such action under this Act
as the Chief of the Defence Staff may deem fit.
|
|
|
|
|
|
|
|
248. (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 for a new trial.
|
|
|
|
(2) No petition under this section shall be entertained unless it is
delivered to an officer designated for that purpose in regulations
|
|
|
|
(a) within one year after the date of the pronouncement of the
finding, or
|
|
|
|
(b) within one year after any punishment of incarceration undergone
by the petitioner in consequence of the trial resulting in the finding
has been carried out,
|
|
|
|
whichever is the later.
|
|
|
|
(3) Every petition under this section shall be forwarded to the Judge
Advocate General, who shall refer the petition with the
recommendation of the Judge Advocate General to the Chief of the
Defence Staff.
|
|
|
|
(4) Where the Chief of the Defence Staff is of the opinion that a
petition referred under subsection (3) should be granted, the Chief of the
Defence Staff shall order a new trial and the petitioner shall be tried
again as if no trial had been held.
|
|
|
|
Clause 74: The headings before section 248.1 and
sections 248.1 and 248.2 read as follows:
|
|
|
|
|
|
|
|
|
|
|
|
248.1 Every person sentenced to a period of detention or
imprisonment by a court martial has, within twenty-four hours after
being so sentenced, the right to apply to that court martial or, in such
circumstances as may be provided for by regulations made by the
Governor in Council, to a Standing Court Martial, for a direction that the
person be released from detention or imprisonment until the expiration
of the time to appeal referred to in subsection 232(3) and, if there is an
appeal, until the determination of the appeal.
|
|
|
|
248.2 Every person sentenced to a period of detention or
imprisonment by a court martial who appeals under Part IX has the
right, if the person has not applied under section 248.1, to apply to a
judge of the Court Martial Appeal Court or, in such circumstances as
may be provided for by regulations made by the Governor in Council,
to a Standing Court Martial, for a direction that the person be released
from detention or imprisonment until the determination of the appeal.
|
|
|
|
Clause 75: (1) to (3) The relevant portion of
subsection 248.3 reads as follows:
|
|
|
|
248.3 On hearing an application to be released from detention or
imprisonment, the court martial, or the judge, as the case may be, may
direct that the person making the application be released as provided for
in sections 248.1 and 248.2 if the person establishes
|
|
|
|
(a) in the case of an application under section 248.1,
|
|
|
|
|
|
|
|
(ii) that it would cause unnecessary hardship if the person were
placed or retained in detention or imprisonment,
|
|
|
|
(b) in the case of an application under section 248.2,
|
|
|
|
|
|
|
|
(ii) that it would cause unnecessary hardship if the person were
placed or retained in detention or imprisonment,
|
|
|
|
|
|
|
|
Clause 76: Section 248.4 reads as follows:
|
|
|
|
248.4 On the hearing of an application to be released, counsel acting
on behalf of the Canadian Forces shall be permitted to make
representations if counsel so wishes after representations by or on
behalf of the person making the application.
|
|
|
|
Clause 77: Section 248.5 reads as follows:
|
|
|
|
248.5 If an application for release is granted, the court martial or the
judge, as the case may be, may direct that the person making the
application be released on his giving an undertaking to
|
|
|
|
(a) remain under military authority;
|
|
|
|
(b) surrender himself into custody when directed to do so; and
|
|
|
|
(c) comply with such other reasonable conditions as are stipulated by
the court martial or the judge.
|
|
|
|
Clause 78: The relevant portion of subsection
248.8(1) reads as follows:
|
|
|
|
248.8 (1) The conditions of an undertaking referred to in section
248.5 may, on application by the person who gave the undertaking or
by counsel for the Canadian Forces, be reviewed by the Court Martial
Appeal Court and that Court may
|
|
|
|
Clause 79: (1) The relevant portion of subsection
248.81(1) reads as follows:
|
|
|
|
248.81 (1) Where, on application by counsel for the Canadian
Forces, an authority referred to in subsection (2) is satisfied, on cause
being shown, that an undertaking given by a person under section 248.5
has been breached or is likely to be breached, that authority may
|
|
|
|
(2) Subsection 248.81(2) reads as follows:
|
|
|
|
(2) The authority to whom an application under subsection (1) may
be made is
|
|
|
|
(a) where the undertaking was given by an officer or
non-commissioned member in respect of a direction made pursuant
to an application under section 248.1, a Standing Court Martial;
|
|
|
|
(b) where the undertaking was given by a person other than a person
referred to in paragraph (a) in respect of a direction made pursuant
to an application under section 248.1, a Special General Court
Martial; or
|
|
|
|
(c) subject to subsection (3), where the undertaking was given in
respect of a direction made pursuant to an application under section
248.2, a judge of the Court Martial Appeal Court.
|
|
|
|
(3) Subsection 248.81(3) reads as follows:
|
|
|
|
(3) In the circumstances provided for in regulations made by the
Governor in Council, the authority to whom an application under
subsection (1) may be made in respect of a direction made pursuant to
an application under section 248.2 is
|
|
|
|
(a) where the undertaking was given by an officer or
non-commissioned member, a Standing Court Martial; or
|
|
|
|
(b) where the undertaking was given by a person other than a person
referred to in paragraph (a), a Special General Court Martial.
|
|
|
|
Clause 80: Subsection 248.9(4) reads as follows:
|
|
|
|
(4) The provisions of Part IX apply, with such modifications as the
circumstances require, to any appeal under this section.
|
|
|
|
Clause 81: New.
|
|
|
|
Clause 82: The headings before section 249 and
sections 249 to 251 read as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
249. (1) For the purposes of this section and section 250, ``court
martial'', in addition to the tribunals referred to in the definition ``court
martial'' in section 2, includes a commissioner taking evidence under
this Act.
|
|
|
|
(2) Every person required to give evidence before a court martial
may be summoned under the hand of the authority that convened,
established or appointed the court martial, or of the Judge Advocate
General, or under the hand of the president, judge advocate or
commissioner taking evidence under this Act.
|
|
|
|
(3) A person summoned under subsection (2) may be required to
bring with him and produce at a court martial any documents in the
possession or under the control of the person that relate to the matters
in issue before the court martial.
|
|
|
|
(4) A witness summoned or attending to give evidence before a court
martial shall be paid such witness fees and allowances for expenses of
attendance as are prescribed in regulations.
|
|
|
|
250. (1) Any conduct of counsel before a court martial that would be
liable to censure or be contempt of court if it took place before a civil
court in the place where the court martial is held is likewise liable to
censure or is contempt of court in the case of a court martial.
|
|
|
|
(2) The regulations governing the procedure of courts martial are
binding on counsel appearing before courts martial and wilful
disobedience of those regulations shall, if persevered in, be deemed to
be contempt of court.
|
|
|
|
(3) A court martial, by order under the hand of the president, or a
commissioner taking evidence under this Act, may cause counsel to be
removed from the court martial for contempt.
|
|
|
|
251. Every person when required to give evidence on oath under this
Act shall take the oath in the form prescribed in regulations and that
oath, in respect of any prosecution under the Criminal Code, has the
same force and effect as an oath taken before a civil court.
|
|
|
|
Clause 83: The relevant portion of subsection 271(1)
reads as follows:
|
|
|
|
271. (1) Compensation may, to such extent, in such manner and to
such persons as the Governor in Council may by regulation prescribe,
be paid in respect of disability or death resulting from injury or disease
or aggravation thereof incurred by any person while
|
|
|
|
|
|
|
|
and performing any function in relation to the Canadian Forces, the De
fence Research Board or any forces cooperating with the Canadian
Forces or the Defence Research Board, if the injury or disease or ag
gravation thereof arose out of or was directly connected with the perfor
mance of such functions.
|
|
|
|
Clause 84: The relevant portion of section 273.1 reads
as follows:
|
|
|
|
273.1 The Governor in Council may make regulations
|
|
|
|
|
|
|
|
(b) respecting the access to, exclusion from and safety and conduct
of persons in, on or about any defence establishment, work for
defence or materiel, including, without restricting the generality of
the foregoing, regulations
|
|
|
|
|
|
|
|
(ii) requiring any person, as a condition of being given access to
any such place or materiel, to submit to a search of his person or
personal property on demand while entering or exiting any such
place or materiel or any restricted area within that place or
materiel.
|
|
|
|
Clause 85: The relevant portion of section 273.2 reads
as follows:
|
|
|
|
273.2 Except as provided for by regulations made pursuant to
section 273.1, the following, namely,
|
|
|
|
|
|
|
|
(b) the personal property of any person subject to the Code of Service
Discipline located in, on or about any defence establishment, work
for defence or materiel,
|
|
|
|
may be searched only if a warrant for that purpose has been issued or
the search is otherwise authorized by law.
|
|
|
|
Clause 86: (1) and (2) The relevant portions of section
273.3 reads as follows:
|
|
|
|
273.3 Subject to sections 273.4 and 273.5, a commanding officer
who is satisfied by information on oath that there is in any quarters,
locker, storage space or personal property referred to in section 273.2
|
|
|
|
|
|
|
|
may issue a warrant under his hand authorizing any officer or non-com
missioned member named therein, assisted by such other officers and
non-commissioned members under his direction as are necessary, or a
peace officer, to search the quarters, locker, storage space or personal
property for any such thing, and to seize and carry it before that com
manding officer.
|
|
|
|
Clause 87: New.
|
|
|
|
Clause 90: Section 302 reads as follows:
|
|
|
|
302. (1) Every person who
|
|
|
|
(a) on being duly summoned as a witness under section 249 and after
payment or tender of the fees and expenses of that person's
attendance prescribed in regulations, makes default in attending,
|
|
|
|
(b) being in attendance as a witness before a court martial referred
to in section 249,
|
|
|
|
(i) refuses to take an oath or solemn affirmation legally required
of that person,
|
|
|
|
(ii) refuses to produce any document in the power or under the
control of, and legally required to be produced by, that person, or
|
|
|
|
(iii) refuses to answer any question that legally requires an
answer,
|
|
|
|
(c) uses insulting or threatening language before a court martial
referred to in section 249, causes any interference or disturbance in
its proceedings, prints observations or uses words likely to influence
improperly the members of or witnesses before that court martial or
to bring that court martial into disrepute or, in any other manner
whatever, displays contempt of that court martial, or
|
|
|
|
(d) being in attendance as counsel before a court martial referred to
in section 250, is in contempt of court within the meaning of
subsection (1) or (2) of that section,
|
|
|
|
is guilty of an offence and the court martial may, by a certificate setting
out the facts thereof, refer the offence of that person to a civil court, in
the place where the court martial is held, that has power to punish wit
nesses guilty of like offences in that civil court.
|
|
|
|
(2) Any civil court to which an offence under this section has been
referred shall cause to be brought before it the person certified to have
committed that offence, shall inquire into the circumstances set out in
the certificate referred to in subsection (1) and, after examination of any
witnesses who may be produced for or against the person and after
hearing any statement that may be offered in defence, shall, if it seems
just to do so, punish the person in like manner as if the person had
committed the offence in a proceeding in that civil court.
|
|
|
|
|
|
|
|
Clause 107: The definition ``pay'' in subsection 2(1)
reads as follows:
|
|
|
|
``pay'', as applied to the Canadian Forces, means pay at the rates
prescribed by the regulations made under the National Defence Act
for the rank held by the person in respect of whom the expression is
being applied, together with the allowances prescribed by the
regulations made under this Act for that rank, and, as applied to the
Public Service or the Royal Canadian Mounted Police, means the
salary or pay and allowances, as the case may be, applicable in the
case of that person, as determined under the Public Service
Superannuation Act or the Royal Canadian Mounted Police
Superannuation Act;
|
|
|
|
|
|
|
|
Clause 108: The relevant portion of subsection 17(1)
reads as follows:
|
|
|
|
17. (1) Where, in the opinion of the institutional head,
|
|
|
|
|
|
|
|
the absence may, subject to section 746.1 of the Criminal Code, be au
thorized by the institutional head
|
|
|
|
Clause 109: The relevant portion of subsection 18(2)
reads as follows:
|
|
|
|
(2) Where an inmate is eligible for unescorted temporary absences
under Part II or pursuant to section 746.1 of the Criminal Code and, in
the opinion of the institutional head,
|
|
|
|
Clause 110: The relevant portion of subsection 107(1)
reads as follows:
|
|
|
|
107. (1) Subject to this Act, the Prisons and Reformatories Act, the
Transfer of Offenders Act and the Criminal Code, the Board has
exclusive jurisdiction and absolute discretion
|
|
|
|
Clause 111: (1) The relevant portion of subsection
119(1) reads as follows:
|
|
|
|
119. (1) Subject to section 746.1 of the Criminal Code, the portion
of a sentence that must be served before an offender may be released on
day parole is
|
|
|
|
(2) Subsection 119(1.1) reads as follows:
|
|
|
|
(1.1) Notwithstanding section 746.1 of the Criminal Code, in the
circumstances described in subsection 120.2(2) or (3), an offender
described in subsection 746.1(1) or (2) of the Criminal Code shall not
be released on day parole until three years before the day that is
determined in accordance with subsection 120.2(2) or (3).
|
|
|
|
(3) The relevant portion of subsection 119(1.2) reads
as follows:
|
|
|
|
(1.2) Notwithstanding section 746.1 of the Criminal Code, in the
circumstances described in subsection 120.2(2), the portion of the
sentence of an offender described in subsection 746.1(3) of the
Criminal Code that must be served before the offender may be released
on day parole is the longer of
|
|
|
|
Clause 112: Section 120 reads as follows:
|
|
|
|
120. (1) Subject to sections 746.1 and 761 of the Criminal Code and
to any order made under section 743.6 of that Act, an offender is not
eligible for full parole until the day on which the offender has served a
period of ineligibility of the lesser of one third of the sentence and seven
years.
|
|
|
|
(2) Subject to any order made under section 741.2 of the Criminal
Code, an offender who is serving a life sentence, imposed otherwise
than as a minimum punishment, is not eligible for full parole until the
day on which the offender has served a period of ineligibility of seven
years less any time spent in custody between the day on which the
offender was arrested and taken into custody, in respect of the offence
for which the sentence was imposed, and the day on which the sentence
was imposed.
|
|
|
|
Clause 113: (1) The relevant portion of subsection
120.2(1) reads as follows:
|
|
|
|
120.2 (1) Subject to subsection (2), where an offender who is serving
a sentence receives an additional sentence that is to be served
concurrently with any portion of the sentence the offender was serving
when the additional sentence was imposed, the offender is not eligible
for full parole until the day that is the later of
|
|
|
|
|
|
|
|
(b) the day on which the offender has served
|
|
|
|
(i) the period of ineligibility in relation to any portion of the
sentence that includes the additional sentence as provided by
subsection 139(1) and that is subject to an order under section
741.2 of the Criminal Code, and
|
|
|
|
(2) The relevant portion of subsection 120.2(3) reads
as follows:
|
|
|
|
(3) Where, pursuant to section 745.6 of the Criminal Code, there has
been a reduction in the number of years of imprisonment without
eligibility for parole of an offender referred to in subsection (2), the
offender is not eligible for full parole until the day on which the offender
has served, commencing on the day on which the additional sentence
was imposed,
|
|
|
|
Clause 114: Section 120.3 reads as follows:
|
|
|
|
120.3 Subject to section 745 of the Criminal Code, where an
offender who is serving a sentence receives an additional sentence, the
day on which the offender is eligible for full parole shall not be later than
the day on which the offender has served fifteen years from the day on
which the last of the sentences was imposed.
|
|
|
|
Clause 115: The relevant portion of subsection 121(1)
reads as follows:
|
|
|
|
121. (1) Subject to section 102 and notwithstanding sections 119 to
120.3 or any order made under section 743.6 of the Criminal Code,
parole may be granted at any time to an offender
|
|
|
|
Clause 116: The relevant portion of subsection 125(1)
reads as follows:
|
|
|
|
125. (1) This section and section 126 apply to an offender sentenced,
committed or transferred to penitentiary for the first time, otherwise
than pursuant to an agreement entered into under paragraph 16(1)(b),
other than an offender
|
|
|
|
(a) serving a sentence for one of the following offences, namely,
|
|
|
|
|
|
|
|
|
|
|
|
Clause 117: Subsection 129(1) reads as follows:
|
|
|
|
129. (1) Before the statutory release date of an offender who is
serving a sentence of two years or more that includes a sentence
imposed for an offence set out in Schedule I or II, the Commissioner
shall cause the offender's case to be reviewed by the Service.
|
|
|
|
Clause 118: (1) The relevant portion of subsection
130(3) reads as follows:
|
|
|
|
(3) On completion of the review of the case of an offender referred
to in subsection (1), the Board may order that the offender not be
released from imprisonment before the expiration of the offender's
sentence according to law, except as provided by subsection (5), where
the Board is satisfied
|
|
|
|
(a) in the case of an offender serving a sentence that includes a
sentence for an offence set out in Schedule I, that the offender is
likely, if released, to commit an offence causing the death of or
serious harm to another person or a sexual offence involving a child
before the expiration of the offender's sentence according to law,
|
|
|
|
(b) in the case of an offender serving a sentence that includes a
sentence for an offence set out in Schedule II, that the offender is
likely, if released, to commit a serious drug offence before the
expiration of the offender's sentence according to law, or
|
|
|
|
(2) The relevant portion of subsection 130(4) reads as
follows:
|
|
|
|
(4) Where the Board is not satisfied as provided in subsection (3) but
is satisfied that
|
|
|
|
(a) at the time the case was referred to it, the offender was serving a
sentence that included a sentence for an offence set out in Schedule
I or II, and
|
|
|
|
(b) in the case of an offence set out in Schedule I, the commission of
the offence caused the death of, or serious harm to, another person
or the offence was a sexual offence involving a child,
|
|
|
|
|
|
|
|
Clause 119: Section 132 reads as follows:
|
|
|
|
132. Every one who commits perjury is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years, but if a person commits perjury to procure the conviction of
another person for an offence punishable by death, the person who
commits perjury is liable to a maximum term of imprisonment for life.
|
|
|
|
Clause 120: The relevant portion of section 463 reads
as follows:
|
|
|
|
463. Except where otherwise expressly provided by law, the
following provisions apply in respect of persons who attempt to commit
or are accessories after the fact to the commission of offences:
|
|
|
|
(a) every one who attempts to commit or is an accessory after the fact
to the commission of an indictable offence for which, on conviction,
an accused is liable to be sentenced to death or to imprisonment for
life is guilty of an indictable offence and liable to imprisonment for
a term not exceeding fourteen years;
|
|
|
|
Clause 121: The relevant portion of subsection 465(1)
reads as follows:
|
|
|
|
465. (1) Except where otherwise expressly provided by law, the
following provisions apply in respect of conspiracy:
|
|
|
|
|
|
|
|
(b) every one who conspires with any one to prosecute a person for
an alleged offence, knowing that he did not commit that offence, is
guilty of an indictable offence and liable
|
|
|
|
(i) to imprisonment for a term not exceeding ten years, if the
alleged offence is one for which, on conviction, that person would
be liable to be sentenced to death or to imprisonment for life or
for a term not exceeding fourteen years, or
|
|
|
|
|
|
|
|
Clause 127: Subsection 13(1) reads as follows:
|
|
|
|
13. (1) Subject to such limitations as may be prescribed in the
regulations, subsections 249(2), (3) and (4) of the National Defence Act
apply in relation to courts martial of a visiting force, except that a person
required to give evidence before a court martial of a visiting force may
be summoned only by a provincial court judge or justice of the peace
whose authority in that respect shall be exercised in accordance with the
regulations.
|
|