Bill C-25
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DIVISION 6 |
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TRIAL BY COURT MARTIAL |
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Charge must be Preferred
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| Charge must
be preferred
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165. (1) A person may be tried by court
martial only if a charge against the person is
preferred by the Director of Military
Prosecutions.
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| Meaning of
``prefer''
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(2) For the purposes of this Act, a charge is
preferred when the charge sheet in respect of
the charge is signed by the Director of Military
Prosecutions, or an officer authorized by the
Director of Military Prosecutions to do so, and
referred to the Court Martial Administrator.
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Director of Military Prosecutions
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| Appointment
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165.1 (1) The Minister may appoint an
officer who is a barrister or advocate with at
least ten years standing at the bar of a province
to be the Director of Military Prosecutions.
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| Tenure of
office and
removal
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(2) The Director of Military Prosecutions
holds office during good behaviour for a term
not exceeding four years. The Minister may
remove the Director of Military Prosecutions
from office for cause on the recommendation
of an Inquiry Committee established under
regulations made by the Governor in Council.
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| Powers of
Inquiry
Committee
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(2.1) The Inquiry Committee is deemed to
have the powers of a court martial.
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| Re- appointment
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(3) The Director of Military Prosecutions is
eligible to be re-appointed on the expiry of a
first or subsequent term of office.
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| Duties and
functions
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165.11 The Director of Military
Prosecutions is responsible for the preferring
of all charges to be tried by court martial and
for the conduct of all prosecutions at courts
martial. The Director of Military Prosecutions
also acts as counsel for the Minister in respect
of appeals when instructed to do so.
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| Preferring
charges
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165.12 (1) When a charge is referred to the
Director of Military Prosecutions, the
Director of Military Prosecutions may
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| Withdrawing
charges
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(2) The Director of Military Prosecutions
may withdraw a charge that has been
preferred, but if a trial by court martial has
commenced, the Director of Military
Prosecutions may do so only with leave of the
court martial.
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| Effect of
withdrawing
charge
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(3) Withdrawing a charge does not preclude
it from being proceeded with at any
subsequent time.
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| Referral of
charge
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165.13 If the Director of Military
Prosecutions is satisfied that a charge should
not be proceeded with by court martial, the
Director of Military Prosecutions may refer it
for disposal by an officer who has jurisdiction
to try the accused person by summary trial.
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| Director to
determine
type of court
martial
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165.14 When the Director of Military
Prosecutions prefers a charge, the Director of
Military Prosecutions shall also determine the
type of court martial that is to try the accused
person and inform the Court Martial
Administrator of that determination.
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| Barristers and
advocates to
assist
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165.15 The Director of Military
Prosecutions may be assisted and represented,
to the extent determined by the Director of
Military Prosecutions, by officers who are
barristers or advocates with standing at the bar
of a province.
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| Acting
Director of
Military
Prosecutions
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165.16 The powers of the Director of
Military Prosecutions may be exercised, and
the duties and functions of the Director of
Military Prosecutions may be performed, by
any officer who is a barrister or advocate with
standing at the bar of a province and who is
authorized by the Minister.
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| Relationship
to Judge
Advocate
General
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165.17 (1) The Director of Military
Prosecutions acts under the general
supervision of the Judge Advocate General.
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| General
instructions
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(2) The Judge Advocate General may issue
general instructions or guidelines in writing in
respect of prosecutions. The Director of
Military Prosecutions shall ensure that they
are available to the public.
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| Specific
instructions
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(3) The Judge Advocate General may issue
instructions or guidelines in writing in respect
of a particular prosecution.
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| Availability to
public
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(4) The Director of Military Prosecutions
shall ensure that instructions and guidelines
issued under subsection (3) are available to the
public.
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| Exception
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(5) Subsection (4) does not apply where the
Director of Military Prosecutions considers
that it would not be in the best interests of the
administration of military justice for any
instruction or guideline, or any part of it, to be
available to the public.
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| Copies to
Minister
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(6) The Judge Advocate General shall
provide the Minister with a copy of every
instruction and guideline made under this
section.
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Court Martial Administrator
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| Appointment
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165.18 There shall be a person appointed to
be the Court Martial Administrator.
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| Duties and
functions
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165.19 (1) When a charge is preferred, the
Court Martial Administrator shall convene a
court martial in accordance with the
determination of the Director of Military
Prosecutions under section 165.14 and, in the
case of a General Court Martial or a
Disciplinary Court Martial, shall appoint its
members.
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| Other duties
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(2) The Court Martial Administrator
performs such other duties as may be specified
by this Act or prescribed by the Governor in
Council in regulations.
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| Relationship
to Chief
Military Judge
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(3) The Court Martial Administrator acts
under the general supervision of the Chief
Military Judge.
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| Acting Court
Martial
Adminis- trator
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165.2 The duties and functions of the Court
Martial Administrator may be performed by
any person authorized by the Court Martial
Administrator.
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Military Judges
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| Appointment
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165.21 (1) The Governor in Council may
appoint officers who are barristers or
advocates of at least ten years standing at the
bar of a province to be military judges.
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| Tenure of
office and
removal
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(2) A military judge holds office during
good behaviour for a term of five years but
may be removed by the Governor in Council
for cause on the recommendation of an
Inquiry Committee established under
regulations made by the Governor in Council.
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| Powers of
Inquiry
Committee
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(2.1) The Inquiry Committee is deemed to
have the powers of a court martial.
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| Re- appointment
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(3) A military judge is eligible to be
re-appointed on the expiry of a first or
subsequent term of office on the
recommendation of a Renewal Committee
established under regulations made by the
Governor in Council.
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| Retirement
age
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(4) A military judge ceases to hold office on
reaching the retirement age prescribed by the
Governor in Council in regulations.
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| Remunera- tion
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165.22 (1) The rates and conditions of issue
of pay of military judges shall be prescribed by
the Treasury Board in regulations.
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| Review of
remuneration
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(2) The remuneration of military judges
shall be reviewed regularly by a
Compensation Committee established under
regulations made by the Governor in Council.
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| Judicial duties
and functions
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165.23 (1) Military judges shall preside at
courts martial and shall perform other judicial
duties under this Act that are required to be
performed by military judges.
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| Other duties
and functions
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(2) In addition to their judicial duties,
military judges shall perform any other duties
that the Chief Military Judge may direct, but
those other duties may not be incompatible
with their judicial duties.
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| Boards of
inquiry
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(3) Military judges may, with the
concurrence of the Chief Military Judge, be
appointed as a board of inquiry.
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Chief Military Judge
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| Chief Military
Judge
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165.24 The Governor in Council may
designate a military judge to be the Chief
Military Judge.
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| Duties and
functions
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165.25 The Chief Military Judge assigns
military judges to preside at courts martial and
to perform other judicial duties under this Act.
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| Acting Chief
Military Judge
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165.26 The Chief Military Judge may
authorize any military judge to perform the
duties and functions of the Chief Military
Judge.
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| Delegation
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165.27 The Chief Military Judge may
delegate any of the Chief Military Judge's
duties and functions to a military judge.
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General Courts Martial
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| Jurisdiction
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166. A General Court Martial may try any
person who is liable to be charged, dealt with
and tried on a charge of having committed a
service offence.
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| Composition
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167. (1) A General Court Martial is
composed of a military judge and a panel of
five members.
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| Rank of
senior
member
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(2) The senior member of the panel must be
an officer of or above the rank of colonel.
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| Rank for trial
of officer
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(3) If the accused person is an officer, all of
the members of the panel must be officers.
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| Ranks for trial
of brigadier- general or above
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(4) If the accused person is of or above the
rank of brigadier-general, the senior member
of the panel must be an officer of or above the
rank of the accused person and the other
members of the panel must be of or above the
rank of colonel.
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| Rank for trial
of colonel
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(5) If the accused person is of the rank of
colonel, all of the members of the panel,
except the senior member, must be of or above
the rank of lieutenant-colonel.
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| Rank for trial
of lieutenant- colonel
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(6) If the accused person is of the rank of
lieutenant-colonel, at least two of the
members of the panel must be of or above the
rank of lieutenant-colonel.
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| Rank for trial
of non- commissioned member
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(7) If the accused person is a
non-commissioned member, two
non-commissioned members who are of the
rank of warrant officer or above must be
appointed as members of the panel and the
other three members must be officers.
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| Ineligibility to
serve
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168. None of the following persons may sit
as a member of the panel of a General Court
Martial:
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Disciplinary Courts Martial
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| Jurisdiction
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169. A Disciplinary Court Martial may try
any officer of or below the rank of major or
any non-commissioned member who is liable
to be charged, dealt with and tried on a charge
of having committed a service offence.
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| Composition
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170. (1) A Disciplinary Court Martial is
composed of a military judge and a panel of
three members.
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| Rank of
senior
member
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(2) The senior member of the panel must be
an officer of or above the rank of major or of
or above any higher rank that may be
prescribed by the Governor in Council in
regulations.
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| Rank for trial
of officer
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(3) If the accused person is an officer, all of
the members of the panel must be officers.
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| Rank for trial
of non- commissioned member
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(4) If the accused person is a
non-commissioned member, one of the
members of the panel must be a
non-commissioned member who is of the rank
of warrant officer or above and the other two
members must be officers.
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| Ineligibility to
serve
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171. None of the following persons may sit
as a member of the panel of a Disciplinary
Court Martial:
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| Punishment
limitation
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172. A Disciplinary Court Martial may not
pass a sentence that includes a punishment
higher in the scale of punishments than
dismissal with disgrace from Her Majesty's
service.
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Standing Courts Martial
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| Jurisdiction
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173. A Standing Court Martial may try any
officer or non-commissioned member who is
liable to be charged, dealt with and tried on a
charge of having committed a service offence.
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| Composition
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174. Every military judge is authorized to
preside at a Standing Court Martial, and a
military judge who does so constitutes the
Standing Court Martial.
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| Punishment
limitation
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175. A Standing Court Martial may not pass
a sentence that includes a punishment higher
in the scale of punishments than dismissal
with disgrace from Her Majesty's service.
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Special General Courts Martial
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| Jurisdiction
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176. A Special General Court Martial may
try any person, other than an officer or
non-commissioned member, who is liable to
be charged, dealt with and tried on a charge of
having committed a service offence.
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| Composition
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177. Every military judge is authorized to
preside at a Special General Court Martial,
and a military judge who does so constitutes
the Special General Court Martial.
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| Punishment
limitation
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178. A Special General Court Martial may
only pass a sentence that includes a
punishment of imprisonment or a fine.
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Powers
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