Bill C-25
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Courts martial
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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
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Military
judges
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(2) Subsection (1) applies to a military
judge performing a judicial duty under this
Act other than presiding at a court martial.
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43. (1) Subsection 180(1) of the English
version of the Act is replaced by the
following:
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Trials public
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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.
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1992, c. 16,
s. 8
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(2) Subsections 180(2) to (4) of the Act are
replaced by the following:
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Exception
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(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
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Witnesses
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(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.
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Clearing court
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(4) For the purpose of any deliberation, a
court martial may cause the place where the
proceedings are being held to be cleared.
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44. Subsections 183(1) to (3) of the Act are
replaced by the following:
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Procurement
of attendance
of witnesses
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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.
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Exception
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(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.
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Procurement
of attendance
in exceptional
cases
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(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.
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Reimburse- ment of accused for fees and expenses
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(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.
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45. (1) Subsection 184(1) of the Act is
replaced by the following:
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Appointment
of
commissioner
to take
evidence
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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
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(2) Subsection 184(3) of the Act is
replaced by the following:
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Power to
require
personal
attendance of
witness
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(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.
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1992, c. 16,
ss. 9 to 11
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46. The heading before section 186 and
sections 186 to 194 of the Act are replaced
by the following:
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Objections
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Objections
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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.
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Replace- ments
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(2) The procedure for the replacement of a
person in respect of whom an objection has
been allowed shall be as prescribed in
regulations.
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Preliminary Proceedings
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Preliminary
proceedings
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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,
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Amendment of Charges
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Amendment if
defence not
prejudiced
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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.
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Adjournment
on
amendment of
charge
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(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.
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Minute of
amendment
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(3) Where a charge is amended by a court
martial, a minute of the amendment shall be
endorsed on the charge sheet.
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Adjournments
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Adjournment
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189. A court martial may adjourn its
proceedings whenever the court martial
considers adjournment desirable.
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Views
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Authority for
viewing
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190. A court martial may view any place,
thing or person.
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Decisions by General or Disciplinary Court
Martial
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Questions of
law
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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.
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Decisions of
panel
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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.
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Majority vote
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(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.
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Sentence
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193. The military judge presiding at a
General Court Martial or a Disciplinary Court
Martial determines the sentence.
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Similar Offences
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Similar
offences may
be considered
in imposing
sentence
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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.
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Restriction
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(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.
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47. Section 196 of the Act and the heading
before it are replaced by the following:
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Death or Incapacity
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Death or
incapacity to
continue of
judge
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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.
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When finding
not
pronounced
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(2) If the court martial has not pronounced
its finding before the presiding military judge
dies or becomes unable to continue, the
replacement judge
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Adjudications
and evidence
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(3) In the case of a court martial continued
under subparagraph (2)(a)(i),
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When finding
pronounced
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(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.
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Dissolution
when number
of members
reduced
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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.
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Illness of
accused
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(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.
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Unfit to stand
trial
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(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.
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Effect of
dissolution
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(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.
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1991, c. 43,
s. 18
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48. The headings before section 197 of the
Act are replaced by the following:
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DIVISION 7 |
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MENTAL DISORDER |
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Interpretation
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1991, c. 43,
s. 18
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49. Subsections 202.1(1) to (3) of the Act
are replaced by the following:
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Where
Review Board
or chairperson
sends accused
back to court
martial
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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.
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Convening
court martial
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(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.
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Custody in
hospital
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(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.
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1997, c. 18,
s. 132
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50. Subsection 202.12(1) of the Act is
replaced by the following:
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Prima facie
case to be
made every
two years
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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
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1991, c. 43,
s. 18
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51. (1) Paragraph 202.14(2)(c) of the Act
is replaced by the following:
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1991, c. 43,
s. 18
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(2) Paragraph 202.14(2)(d) of the Act is
repealed.
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1991, c. 43,
s. 18
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(3) Paragraph 202.14(2)(e) and (f) of the
Act are replaced by the following:
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1991, c. 43,
s. 18
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52. The portion of subsection 202.17(1) of
the English version of the Act before
paragraph (a) is replaced by the following:
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Conditions for
custody
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202.17 (1) An accused person shall not be
placed in custody pursuant to an assessment
order made under this Division unless
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1991, c. 43,
s. 18
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53. Subsection 202.18(1) of the Act is
replaced by the following:
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