Bill C-25

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Courts martial	179. (1) A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to
	(a) the attendance, swearing and examination of witnesses;
	(b) the production and inspection of documents;
	(c) the enforcement of its orders; and
	(d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.
Military judges	(2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.
	43. (1) Subsection 180(1) of the English version of the Act is replaced by the following:
Trials public	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 proceedings.
1992, c. 16, s. 8	(2) Subsections 180(2) to (4) of the Act are replaced by the following:
Exception	(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
	(a) in the interests of public safety, defence or public morals; or
	(b) for the maintenance of order or the proper administration of military justice.
Witnesses	(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.
Clearing court	(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
	44. Subsections 183(1) to (3) of the Act are replaced by the following:
Procurement of attendance of witnesses	183. (1) The commanding officer of an accused person 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.
Exception	(1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.
Procurement of attendance in exceptional cases	(2) Where a commanding officer considers 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 in accordance with section 251.2.
Reimburse- ment of accused for fees and expenses	(3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.
	45. (1) Subsection 184(1) of the Act is replaced by the following:
Appointment of commissioner to take evidence	184. (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a ``commissioner'', to take, under oath, the evidence of any person required as a witness at a court martial
	(a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;
	(b) who is absent from the country in which the trial is held; or
	(c) whose attendance is not readily obtainable for a good and sufficient reason.
	(2) Subsection 184(3) of the Act is replaced by the following:
Power to require personal attendance of witness	(3) Where, in the opinion 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 the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.
1992, c. 16, ss. 9 to 11	46. The heading before section 186 and sections 186 to 194 of the Act are replaced by the following:
	Objections
Objections	186. (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.
Replace- ments	(2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.
	Preliminary Proceedings
Preliminary proceedings	187. At any time after a General Court Martial or Disciplinary Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside over the court martial may, on application,
	(a) hear and determine any question, matter or objection for which the presence of the panel of the court martial is not required; and
	(b) receive the accused person's plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
	Amendment of Charges
Amendment if defence not prejudiced	188. (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person's defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.
Adjournment on amendment of charge	(2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.
Minute of amendment	(3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.
	Adjournments
Adjournment	189. A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.
	Views
Authority for viewing	190. A court martial may view any place, thing or person.
	Decisions by General or Disciplinary Court Martial
Questions of law	191. The military judge presiding at a General Court Martial or a Disciplinary Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.
Decisions of panel	192. (1) The members of the panel of a General Court Martial or a Disciplinary Court Martial determine the court martial's finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.
Majority vote	(2) The decisions of the panel of a General Court Martial or a Disciplinary Court Martial are determined by the vote of a majority of its members.
Sentence	193. The military judge presiding at a General Court Martial or a Disciplinary Court Martial determines the sentence.
	Similar Offences
Similar offences may be considered in imposing sentence	194. (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.
Restriction	(2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may 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.
	47. Section 196 of the Act and the heading before it are replaced by the following:
	Death or Incapacity
Death or incapacity to continue of judge	196. (1) Where the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the ``replacement judge'', assigned by the Chief Military Judge.
When finding not pronounced	(2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge
	(a) in the case of a General Court Martial or Disciplinary Court Martial, may order that the court martial
	(i) continue from the stage at which it was when it was deemed to be adjourned, or
	(ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been taken; and
	(b) in the case of a Standing Court Martial or Special General Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been taken.
Adjudications and evidence	(3) In the case of a court martial continued under subparagraph (2)(a)(i),
	(a) if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; and
	(b) if any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.
When finding pronounced	(4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.
Dissolution when number of members reduced	196.1 (1) Where, after an accused person has made a plea but before the court martial pronounces its finding, a member of the panel of the court martial dies or is for any reason unable to continue to act, the court martial is dissolved.
Illness of accused	(2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.
Unfit to stand trial	(3) Where a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.
Effect of dissolution	(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.
1991, c. 43, s. 18	48. The headings before section 197 of the Act are replaced by the following:
	DIVISION 7
	MENTAL DISORDER
	Interpretation
1991, c. 43, s. 18	49. Subsections 202.1(1) to (3) of the Act are replaced by the following:
Where Review Board or chairperson sends accused back to court martial	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, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.
Convening court martial	(2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to 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.
Custody in hospital	(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 Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, 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) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.
1997, c. 18, s. 132	50. Subsection 202.12(1) of the Act is replaced by the following:
Prima facie case to be made every two years	202.12 (1) Where a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene 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, to 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 any other time that the Chief Military Judge may order, where the Chief Military Judge 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.
1991, c. 43, s. 18	51. (1) Paragraph 202.14(2)(c) of the Act is replaced by the following:
	(c) any service tribunal or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;
1991, c. 43, s. 18	(2) Paragraph 202.14(2)(d) of the Act is repealed.
1991, c. 43, s. 18	(3) Paragraph 202.14(2)(e) and (f) of the Act are replaced by the following:
	(e) the finding may be considered in making an order under Division 3 in respect of that person;
	(f) the finding may be considered in determining, under section 249.13 or 249.14, whether to substitute, mitigate, commute or remit a punishment included in a sentence imposed against that person for any other offence;
1991, c. 43, s. 18	52. The portion of subsection 202.17(1) of the English version of the Act before paragraph (a) is replaced by the following:
Conditions for custody	202.17 (1) An accused person shall not be placed in custody pursuant to an assessment order made under this Division unless
1991, c. 43, s. 18	53. Subsection 202.18(1) of the Act is replaced by the following:

Bill C-25

DIVISION 7

MENTAL DISORDER