Variation of undertaking

(2) The undertaking under which a person is released may be varied

    (a) by direction of a military judge on application with reasonable notice being given; or

    (b) with the written consent of the person and the Director of Military Prosecutions.

Hearing may be adjourned

159.5 The military judge may adjourn the hearing on the military judge's own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

Alternate means of hearing

159.6 (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

Representa-
tions and factors to be considered

(2) In deciding whether to make the direction, the military judge shall take into account

    (a) the location of the person in custody;

    (b) the gravity of the offence;

    (c) the circumstances under which the unit or element detaining the person in custody is deployed;

    (d) the availability of counsel for the Canadian Forces and the person in custody;

    (e) the limitations of available telecommunications devices;

    (f) the time required to bring the person in custody and the person's counsel before the military judge; and

    (g) any other matter that the military judge considers relevant.

Reasons

159.7 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

Duty of Director of Military Prosecutions

Review after 90 days

159.8 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.

Review by Court Martial Appeal Court

Review of direction

159.9 (1) At any time before the commencement of a person's trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.

Application of provisions

(2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.

DIVISION 4

COMMENCEMENT OF PROCEEDINGS

Interpretation

Definition of ``comman-
ding officer''

160. In this Division, ``commanding officer'', in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.

Laying of Charge

Laying of charge

161. Proceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

Referral to commanding officer

161.1 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

Duty to Act Expeditiously

Duty to act expeditiously

162. Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

Right to Trial by Court Martial

Election

162.1 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.

Referral of charge

162.2 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.

DIVISION 5

SUMMARY TRIALS

Interpretation

Definitions

162.3 The definitions in this section apply in this Division.

``comman-
ding officer''
« comman-
dant »

``commanding officer'', in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160.

``superior commander''
« commandan t supérieur »

``superior commander'' means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander.

Summary Trials by Commanding Officers

Jurisdiction

163. (1) A commanding officer may try an accused person by summary trial 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 or her powers of punishment are adequate;

    (c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

    (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.

Prohibition on presiding

(2) 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 a person charged with an offence if

    (a) the commanding officer carried out or directly supervised the investigation of the offence;

    (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

    (c) the commanding officer laid the charge or caused it to be laid.

Sentences

(3) Subject to the conditions set out in Division 2 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 thirty days;

    (b) reduction in rank by one rank;

    (c) severe reprimand,

    (d) reprimand,

    (e) a fine not exceeding basic pay for one month, and

    (f) minor punishments.

Delegation

(4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer's command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

    (a) detention not exceeding fourteen days;

    (b) severe reprimand;

    (c) reprimand;

    (d) a fine not exceeding basic pay for fifteen days; and

    (e) minor punishments.

When no summary trial

163.1 (1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    (a) another officer who has jurisdiction to try the accused person by summary trial; or

    (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

Subsequent proceedings not precluded

(2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

Charge may be referred

(3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

Summary Trial by Superior Commanders

Jurisdiction

164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

    (a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

    (b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;

    (c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

    (d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and

    (e) the superior commander 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.

Prohibition on presiding

(2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if

    (a) the superior commander carried out or directly supervised the investigation of the offence;

    (b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or

    (c) the superior commander laid the charge or caused it to be laid.

Exception

(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.

Sentences

(4) Subject to the conditions set out in Division 2 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) severe reprimand;

    (b) reprimand; and

    (c) fine.

When no summary trial

164.1 (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

    (a) another officer who has jurisdiction to try the accused person by summary trial; or

    (b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

Subsequent proceedings not precluded

(2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

Charge may be referred

(3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

Referral to Director of Military Prosecutions

Duty to refer

164.2 (1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.

Exception

(2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if

    (a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and

    (b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.