Bill C-25
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Power of
court martial
to delay
parole
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140.4 (1) Notwithstanding subsection
120(1) of the Corrections and Conditional
Release Act, where a person receives a
sentence of imprisonment for life that is
imposed otherwise than as a minimum
punishment or a sentence of imprisonment for
two years or more on conviction for an offence
set out in Schedule I or II to that Act that is
punishable under section 130 of this Act, a
court martial may order that the portion of the
sentence that must be served before the person
may be released on full parole is one half of the
sentence or ten years, whichever is less.
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Condition
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(2) The court martial may only make an
order under subsection (1) if it is satisfied,
having regard to the circumstances of the
commission of the offence and the character
and circumstances of the person, that the
expression of society's denunciation of the
offence or the objective of specific or general
deterrence requires that the order be made.
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Criminal
organization
offences
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(3) Notwithstanding subsection 120(1) of
the Corrections and Conditional Release Act,
where a person receives a sentence of
imprisonment for life that is imposed
otherwise than as a minimum punishment or
a sentence of imprisonment for two years or
more on conviction under this Act for a
criminal organization offence, the court
martial may order that the portion of the
sentence that must be served before the person
may be released on full parole is one half of the
sentence or ten years, whichever is less.
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Principles
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(4) For greater certainty, the paramount
principles that are to guide the court martial
under this section are denunciation and
specific or general deterrence, with
rehabilitation of the person, in all cases, being
subordinate to those paramount principles.
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37. Section 141 of the Act is amended by
adding the following after subsection (1):
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Effective date
of dismissal
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(1.1) A punishment of dismissal with
disgrace from Her Majesty's service or
dismissal from Her Majesty's service is
deemed to be carried out as of the date on
which the release of an officer or a
non-commissioned member from the
Canadian Forces is effected.
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R.S., c. 31 (1st
Supp.), s. 60
(Sch. I, s. 41)
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38. Section 142 of the Act is replaced by
the following:
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Detention
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142. (1) The punishment of detention is
subject to the following conditions:
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Reduction in
rank during
detention
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(2) If a non-commissioned member above
the rank of private is sentenced to detention,
that person is deemed, for the period of the
detention, to be reduced to the rank of private.
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R.S., c. 31 (1st
Supp.), s. 60
(Sch. I, s. 43)
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39. Sections 144 and 145 of the Act are
replaced by the following:
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Forfeiture of
seniority
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144. Where a court martial imposes a
punishment of forfeiture of seniority on an
officer or non-commissioned member, the
court martial shall in passing sentence specify
the period for which seniority is to be
forfeited.
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Fine
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145. (1) A fine must be imposed in a stated
amount.
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Terms of
payment
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(2) The terms of payment of a fine are in the
discretion of the service tribunal that imposes
the fine.
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Variation of
terms of
payment
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(3) The terms of payment of a fine may be
varied, in the case of a summary trial, by the
officer who conducted the trial, and in the case
of a court martial, by the military judge who
imposed the fine or a military judge
designated by the Chief Military Judge.
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40. The headings before section 154 of the
Act are replaced by the following:
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DIVISION 3 |
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ARREST AND PRE-TRIAL CUSTODY |
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Interpretation
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Definitions
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153. The definitions in this section apply in
this Division.
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``custody
review
officer'' « officier réviseur »
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``custody review officer'', in respect of a
person in custody, means
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``designated
offence'' « infraction désignée »
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``designated offence'' means
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Authority to Arrest
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R.S., c. 31 (1st
Supp.), s. 49
and s. 60
(Sch. I, s. 45)
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41. The portion of section 156 of the Act
before paragraph (b) is replaced by the
following:
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Powers of
military police
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156. Officers and non-commissioned
members who are appointed as military police
under regulations for the purposes of this
section may
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R.S., c. 31 (1st
Supp.), ss. 51
to 56 and 60
(Sch. I, ss. 47
to 50); 1991,
c. 43, ss. 14
to 16; 1992, c.
16, ss. 2 to 7;
1993, c. 34,
s. 93(F)
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42. Sections 158 to 179 of the Act are
replaced by the following:
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Release from
custody
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158. (1) A person arrested under this Act
shall, as soon as is practicable, be released
from custody by the person making the arrest,
unless the person making the arrest believes
on reasonable grounds that it is necessary that
the person under arrest be retained in custody
having regard to all the circumstances,
including
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Retention in
custody
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(2) If an arrested person is to be retained in
custody, the person shall be placed in service
custody or civil custody. Such force as is
reasonably necessary for the purpose may be
used.
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Duty to
receive into
service
custody
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(3) The officer or non-commissioned
member in charge of a guard or a guard-room
or an officer or non-commissioned member
appointed for the purposes of section 156 shall
receive and keep a person under arrest who is
committed to his or her custody.
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Account in
writing
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(4) The person who commits a person under
arrest to service custody shall, at the time of
committal, deliver to the officer or
non-commissioned member into whose
custody the person under arrest is committed
a signed account in writing setting out why the
person under arrest is being committed to
custody.
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Report of
custody
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158.1 (1) The officer or non-commissioned
member into whose custody a person under
arrest is committed shall, as soon as
practicable, and in any case within
twenty-four hours after the arrest of the person
committed to custody, deliver a report of
custody, in writing, to the custody review
officer.
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Contents
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(2) The report of custody must set out the
name of the person in custody, an account of
the offence alleged to have been committed by
that person so far as it is known and the name
and rank, if any, of the person who committed
the person into service custody.
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Represen- tations concerning release
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(3) Before the report of custody is delivered
to the custody review officer,
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Represen- tations to be reduced to writing
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(4) Representations concerning release
made by or on behalf of the person in custody
must be reduced to writing or recorded by any
other means.
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Accompa- nying documents
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(5) When the report of custody is delivered,
it must be accompanied by the account in
writing and any representations made by or on
behalf of the person in custody or a statement
confirming that the person was given the
opportunity to make representations but did
not do so.
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Initial Review
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Review of
report of
custody
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158.2 (1) The custody review officer shall
review the report of custody and the
accompanying documents as soon as
practicable after receiving them and in any
case within forty-eight hours after the arrest of
the person committed to custody.
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Duty to
release
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(2) After reviewing the report of custody
and the accompanying documents, the
custody review officer shall direct that the
person committed to custody be released
immediately unless the 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 subsection 158(1).
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Continuing
duty to release
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158.3 If, at any time after receiving the
report of custody and before the person in
custody is brought before a military judge, the
custody review officer no longer believes that
the grounds to retain the person in custody
exist, the custody review officer shall direct
that the person be released from custody.
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Duty to retain
in custody if
designated
offence
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158.4 Notwithstanding subsection 158.2(2)
and section 158.3, if the person in custody is
charged with having committed a designated
offence, the custody review officer shall direct
that the person be retained in custody.
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Duty to
review where
charge not
laid
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158.5 If a charge is not laid within
seventy-two hours after the person in custody
was arrested, the custody review officer shall
determine why a charge has not been laid and
reconsider whether it remains necessary to
retain the person in custody.
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Release with
or without
conditions
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158.6 (1) The custody review officer may
direct that the person be released without
conditions or that the person be released and,
as a condition of release, direct the person to
comply with any of the following conditions:
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Review
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(2) A direction to release a person with or
without conditions may, on application, be
reviewed by
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Powers
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(3) After giving a representative of the
Canadian Forces and the released person an
opportunity to be heard, the officer
conducting the review may make any
direction respecting conditions that a custody
review officer may make under subsection (1).
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Review by Military Judge
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Hearing by
military judge
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159. (1) A custody review officer who does
not direct the release of a person from custody
shall, as soon as practicable, cause the person
to be taken before a military judge for the
purpose of a hearing to determine whether the
person is to be retained in custody.
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Applicable
operational
considera- tions
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(2) In determining when it is practicable to
cause the person to be taken before a military
judge, the custody review officer may have
regard to the constraints of military
operations, including the location of the unit
or element where the person is in custody and
the circumstances under which it is deployed.
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Onus on
Canadian
Forces
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159.1 When the person retained in custody
is taken before a military judge, the military
judge shall direct that the person be released
from custody unless counsel for the Canadian
Forces, or in the absence of counsel a person
appointed by the custody review officer,
shows cause why the continued retention of
the person in custody is justified or why any
other direction under this Division should be
made.
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Justification
for retention
in custody
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159.2 For the purposes of sections 159.1
and 159.3, the retention of a person in custody
is only justified when one or more of the
following grounds have been established to
the satisfaction of the military judge:
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Onus on
person in
custody
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159.3 (1) Notwithstanding section 159.1, if
the person in custody is charged with having
committed a designated offence, the military
judge shall direct that the person be retained in
custody until dealt with according to law,
unless the person shows cause why the
person's retention in custody is not justified.
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Release on
undertaking
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(2) If the person in custody shows cause
why the person's retention in custody is not
justified, the military judge shall direct that
the person be released from custody on giving
any undertaking to comply with any of the
conditions referred to in section 158.6 that the
military judge considers appropriate, unless
the person in custody shows cause why the
giving of an undertaking is not justified.
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Release with
or without
undertaking
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159.4 (1) The military judge may direct that
the person be released without conditions or
that the person be released on the giving of an
undertaking to comply with any of the
conditions referred to in section 158.6 that the
military judge considers appropriate.
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