Bill C-7

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First Reading

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Sentencing

Interpretation

Definitions

203. The following definitions apply in this Division.

“common-law partner”
« conjoint de fait »

“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

“victim”
« victime »

“victim”, in relation to an offence,

(a) means a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

(b) includes — if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1) — the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.

Purposes and Principles of Sentencing by Service Tribunals

Fundamental purposes of sentencing

203.1 (1) The fundamental purposes of sentencing are

(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

(b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Objectives

(2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:

(a) to promote a habit of obedience to lawful commands and orders;

(b) to maintain public trust in the Canadian Forces as a disciplined armed force;

(d) to deter offenders and other persons from committing offences;

(e) to assist in rehabilitating offenders;

(f) to assist in reintegrating offenders into military service;

(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

(h) to provide reparations for harm done to victims or to the community; and

(i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

Fundamental principle of sentencing

203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

(i) the offender, in committing the offence, abused his or her rank or other position of trust or authority,

(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,

(iii) the offender, in committing the offence, abused his or her spouse or common-law partner,

(iv) the offender, in committing the offence, abused a person under the age of 18 years,

(v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

(vi) the offence was committed in a theatre of hostilities,

(vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(viii) the offence was a terrorism offence;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;

(d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and

(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

Abuse of persons under the age of eighteen

203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Facts Relevant to the Determination of a Sentence

Disputed facts

203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court martial shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at trial;

(b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

Panel

(2) In the case of a General Court Martial or a Disciplinary Court Martial, the court martial

(a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

Victim Impact Statement

Duty to consider victim impact statement

203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

Procedure

(2) A statement of a victim must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

Presentation of statement

(3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, on the request of a victim, permit the victim to read his or her statement or to present the statement in any other manner that the court martial considers appropriate.

Evidence concerning victim admissible

(4) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.

Copy of statement

203.7 As soon as practicable after a finding of guilty, the Court Martial Administrator shall ensure that a copy of any statement of a victim is provided to the prosecutor and the accused or counsel for the accused.

Inquiry by court martial

203.8 (1) As soon as practicable after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that he or she may prepare a statement.

Adjournment

(2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

Absolute Discharge

Absolute discharge

203.9 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life — the service tribunal before which the accused appears may, if it considers it to be in the best interests of the accused person and not contrary to the public interest, instead of convicting the accused person, direct that the accused person be discharged absolutely.

Effect of discharge

(2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

(b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

References to section 730 of the Criminal Code

(3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

Restitution

Restitution order

203.91 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

(c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

Enforcing restitution order

203.92 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Moneys found on offender

203.93 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the possession of the offender and seized at the time of the arrest of the offender if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.

Notice of orders of restitution

203.94 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

Civil remedy not affected

203.95 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

Passing of Sentence

One sentence only to be passed

203.96 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

1998, c. 35, s. 55

65. The heading “Division 8” before section 204 of the Act is replaced by the following:

Division 8.1

1998, c. 35, s. 57

66. Subsection 204(1) of the Act is replaced by the following:

Commencement of term

204. (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.

1998, c. 35, s. 60

67. Section 215 of the Act is replaced by the following:

Suspension of execution of punishment

215. (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.

Conditions

(2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

(a) to keep the peace and be of good behaviour;

(b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in paragraph 215.2(1)(a), (b) or (c); and

(c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

Other conditions

(3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

Term if suspended punishment put into execution

(4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.

Varying conditions

215.1 On application by an offender, a condition imposed under section 215 may be varied, or another condition substituted for that condition, by

(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

(b) a military judge, in the case of a condition imposed by a court martial; or

Hearing into breach of conditions

215.2 (1) On application by a representative of the Canadian Forces, a determination of whether an offender has breached a condition imposed under section 215 may be made by

(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

(b) a military judge, in the case of a condition imposed by a court martial; or

Revocation of suspension or changes to conditions

(2) If a person referred to in any of paragraphs (1)(a) to (c) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

(a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority empowered to do so to commit the offender; or

(b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.

Non-appearance of accused person

215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant in the prescribed form for the arrest of the offender.

1998, c. 35, s. 60

68. Subsections 216(1) and (2) of the Act are replaced by the following:

Definition of “suspending authority”

216. (1) In this section and section 217, “suspending authority” means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.

Suspension of imprisonment or detention

(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the welfare of the offender.

Notification

(2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.

Committal after suspension

(2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the conduct of the offender is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority empowered to do so to commit the offender.

69. Subsection 217(1) of the Act is replaced by the following:

Review and remission

217. (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

70. Section 218 of the Act is repealed.

71. The Act is amended by adding the following after section 226:

Parole Eligibility

Sentence of imprisonment for life

226.1 (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:

(a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or

(e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.

Provisions of Criminal Code apply

(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of life imprisonment imposed under this Act, and for that purpose

(a) a reference in sections 745.2 and 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and

(b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when the offender makes an application under that section.

Power of court martial to delay parole

226.2 (1) Despite section 120 of the Corrections and Conditional Release Act, if 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 10 years, whichever is less.

Condition

(2) The court martial may only make the order 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.

Criminal organization offences

(3) Despite section 120 of the Corrections and Conditional Release Act, if 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 10 years, whichever is less.

Power of court martial to delay parole

(4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall 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 10 years, whichever is less, unless the court martial 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 and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

Objectives

(5) The paramount objectives 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 objectives.

72. Section 230 of the Act is amended by striking out the word “or” at the end of paragraph (e) and by adding the following after paragraph (f):

(g) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;

(h) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

(i) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or

(j) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

73. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (f.1) and by adding the following after paragraph (g):

(h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the severity of any period imposed under section 147.2;

(i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

(j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.91 or the legality of an order made under section 249.25; or

(k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

1998, c. 35, s. 82

74. Subsection 249.18(2) of the Act is replaced by the following:

Tenure of office

(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

Powers of inquiry committee

(2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — 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;

(d) all other matters necessary or proper for the due exercise of its jurisdiction.

1998, c. 35, s. 82

75. Subsection 249.21(1) of the French version of the Act is replaced by the following:

Avocats

249.21 (1) Le directeur du service d’avocats de la défense peut être assisté par des avocats inscrits au barreau d’une province.

76. The Act is amended by adding the following after section 249.21:

Appeal committee

249.211 The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.

1998, c. 35, s. 82

77. Subsection 249.25(1) of the Act is replaced by the following:

Restitution of property in case of conviction

249.25 (1) A service tribunal that convicts or discharges absolutely a person of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

78. The Act is amended by adding the following after section 249.26:

Criminal Record

Convictions in respect of certain offences

249.27 (1) A person who is convicted of any of the following offences has not been convicted of a criminal offence:

(a) an offence under section 85, 86, 90, 97 or 129 in respect of which the offender is sentenced to a minor punishment or a fine of $500 or less, or both; and

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

Criminal Records Act

(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

1998, c. 35, s. 82

79. The definitions “military police” and “Provost Marshal” in section 250 of the Act are repealed.

80. (1) Section 250.1 of the Act is amended by adding the following after subsection (4):

Completion of duties

(4.1) A person who has ceased to hold office as a member for any reason other than their removal may, at the request of the Chairperson and for a period not exceeding six months that is authorized by the Chairperson, continue to participate in the review of any complaint that the person began to review before ceasing to hold office. During that period, the person is deemed to be a part-time member of the Commission.

1998, c. 35, s. 82

(2) Subsection 250.1(11) of the French version of the Act is replaced by the following:

Serment

(11) Avant d’entrer en fonctions, les membres prêtent le serment suivant :

Moi, .........., je jure (ou j’affirme) solennellement que j’exercerai fidèlement et honnêtement les devoirs qui m’incombent en ma qualité de membre de la Commission d’examen des plaintes concernant la police militaire en conformité avec les prescriptions de la Loi sur la défense nationale applicables à celle-ci, ainsi que toutes règles et instructions établies sous son régime, et que je ne révélerai ni ne ferai connaître, sans y avoir été dûment autorisé(e), rien de ce qui parviendra à ma connaissance en raison de mes fonctions. (Dans le cas du serment, ajouter : Ainsi Dieu me soit en aide.)

1998, c. 35, s. 82

81. (1) Subsection 250.18(2) of the French version of the Act is replaced by the following:

Absence de préjudice

(2) La plainte peut être déposée même en l’absence de préjudice.

(2) Section 250.18 of the Act is amended by adding the following after subsection (2):

Complaint by Chairperson

(3) The Chairperson shall not make a conduct complaint unless there are reasonable grounds to investigate the complaint. The Chairperson shall notify the Minister and the Provost Marshal of the complaint and explain in writing why there are reasonable grounds to investigate the complaint.

No penalty for complaint

(4) A person may not be penalized for exercising the right to make a conduct complaint so long as the complaint is made in good faith.

Non-application

(5) Subsection (1) does not apply in respect of the conduct of a member of the military police who is attached or seconded to the Canadian Forces.

1998, c. 35, s. 82

82. (1) Section 250.19 of the French version of the Act is replaced by the following:

Plainte d’un policier militaire

250.19 (1) Le policier militaire qui mène ou supervise une enquête, ou qui l’a menée ou supervisée, peut, dans le cadre de la présente section, porter plainte contre un officier ou militaire du rang ou un cadre supérieur du ministère s’il est fondé à croire, pour des motifs raisonnables, que celui-ci s’est ingéré dans l’enquête.

Intimidation et abus d’autorité

(2) Sont assimilés à l’ingérence dans une enquête l’intimidation et l’abus d’autorité.

(2) Section 250.19 of the Act is amended by adding the following after subsection (2):

No penalty for complaint

(3) A person may not be penalized for exercising the right to make an interference complaint so long as the complaint is made in good faith.

Non-application

(4) Subsection (1) does not apply in respect of alleged interference by a member of any class of officers or non-commissioned members attached or seconded to the Canadian Forces that is prescribed in regulations made by the Governor in Council.

1998, c. 35, s. 82

83. Section 250.2 of the French version of the Act is replaced by the following:

Prescription

250.2 Les plaintes se prescrivent par un an à compter du fait qui en est à l’origine, sauf prorogation accordée à la requête du plaignant par le président, si ce dernier décide que la prorogation est raisonnable dans les circonstances.

1998, c. 35, s. 82

84. Subparagraphs 250.21(2)(c)(ii) and (iii) of the French version of the Act are replaced by the following:

(ii) le président, le chef d’état-major de la défense, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un officier ou militaire du rang,

(iii) le président, le sous-ministre, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un cadre supérieur du ministère.

1998, c. 35, s. 82

85. Section 250.22 of the French version of the Act is replaced by the following:

Avis — plainte pour inconduite

250.22 Dans les meilleurs délais après la réception ou la notification d’une plainte pour inconduite, le grand prévôt avise par écrit la personne qui en fait l’objet de sa teneur, pour autant que cela, à son avis, ne risque pas de nuire à la tenue d’une enquête sous le régime de la présente loi.

1998, c. 35, s. 82

86. Subsection 250.24(2) of the French version of the Act is replaced by the following:

Avis du retrait

(2) Le cas échéant, le président en avise aussitôt, par écrit, le grand prévôt et la personne qui fait l’objet de la plainte.

1998, c. 35, s. 82

87. Section 250.25 of the Act is replaced by the following:

Record of complaints

250.25 (1) The Provost Marshal shall establish and maintain a record of all complaints received under this Division.

Request for documents

(2) The Complaints Commission may request the following documents from the Provost Marshal:

(a) a copy of the complaint;

(b) a copy of the acknowledgment of receipt described in paragraph 250.21(2)(b);

(d) a copy of any report sent under section 250.29 or 250.3;

(e) a copy of the document by which the complaint was referred under section 250.31; and

(f) in the case of a conduct complaint that is resolved informally, a document signed by the Provost Marshal stating that the complaint has been resolved informally.

Providing documents

(3) The Provost Marshal shall provide the documents to the Complaints Commission as soon as practicable.

1998, c. 35, s. 82

88. Subsection 250.26(2) of the Act is replaced by the following:

Complaint about Provost Marshal

(2) If a conduct complaint is about the conduct of the Provost Marshal, or if the Provost Marshal is involved in the conduct complained of, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.

Delegation

(3) The Chief of the Defence Staff may delegate the powers and duties described in subsection (2) only to the Vice Chief of the Defence Staff.

89. The Act is amended by adding the following after section 250.26:

Deadline for resolving or disposing of a complaint

250.261 The Provost Marshal shall resolve or dispose of a conduct complaint — other than a complaint that results in an investigation of an alleged criminal or service offence — within one year after receiving or being notified of the complaint.

1998, c. 35, s. 82

90. (1) Subsection 250.27(1) of the French version of the Act is replaced by the following:

Règlement amiable

250.27 (1) Dès réception ou notification de la plainte pour inconduite, le grand prévôt décide si elle peut être réglée à l’amiable; avec le consentement du plaignant et de la personne qui en fait l’objet, il peut alors tenter de la régler.

1998, c. 35, s. 82

(2) Subsection 250.27(3) of the French version of the Act is replaced by the following:

Déclarations inadmissibles

(3) Les réponses ou déclarations faites, dans le cadre d’une tentative de règlement amiable, par le plaignant ou par la personne qui fait l’objet de la plainte ne peuvent être utilisées devant une juridiction disciplinaire, criminelle, administrative ou civile, sauf si leur auteur les a faites, tout en les sachant fausses, dans l’intention de tromper.

1998, c. 35, s. 82

(3) Paragraph 250.27(5)(b) of the Act is replaced by the following:

(b) the right of the complainant to refer the complaint to the Complaints Commission within 60 days after receiving the notice or to request an extension of the time during which the complaint may be referred.

1998, c. 35, s. 82

(4) Subsection 250.27(6) of the Act is replaced by the following:

Record of informal resolution

(6) If a conduct complaint is resolved informally,

(a) the details of its resolution shall be set out in writing;

(b) the complainant and the person who is the subject of the complaint shall give their written agreement to the resolution of the complaint; and

Confidentiality

(7) The details of an informal resolution of a complaint are confidential and may be disclosed only with the written consent of the complainant and the person who is the subject of the complaint.

1998, c. 35, s. 82

91. Paragraph 250.28(3)(b) of the Act is replaced by the following:

1998, c. 35, s. 82

92. (1) The portion of section 250.29 of the French version of the Act before paragraph (a) is replaced by the following:

Rapport d’enquête

250.29 Au terme de l’enquête, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport comportant les éléments suivants :

1998, c. 35, s. 82

(2) Paragraph 250.29(d) of the Act is replaced by the following:

(d) the right of the complainant to refer the complaint to the Complaints Commission within 60 days after receiving the report or to request an extension of the time during which the complaint may be referred.

1998, c. 35, s. 82

93. Subsection 250.3(1) of the French version of the Act is replaced by the following:

Rapports provisoires

250.3 (1) Au plus tard soixante jours après la réception ou la notification de la plainte et, par la suite, tous les trente jours, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport écrit sur l’état d’avancement de l’affaire.

1998, c. 35, s. 82

94. Section 250.31 of the Act is replaced by the following:

Reference to Complaints Commission

250.31 (1) A complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may, within 60 days after receiving notice of the direction or report, refer the complaint in writing to the Complaints Commission for review.

Information to be provided

(2) If a complainant refers a complaint to the Complaints Commission,

(a) the Chairperson shall send to the Provost Marshal a copy of the document referring the complaint to the Complaints Commission; and

(b) the Provost Marshal shall provide the Chairperson with the documents referred to in paragraphs 250.25(2)(a) to (f), and any other document or information relevant to the complaint other than a document or information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.

Extensions

250.311 (1) On application by a complainant made before the expiry of the 60 day period referred to in subsection 250.31(1), the Chairperson may extend by up to 120 days the period during which the complainant may refer a complaint to the Complaints Commission. The application must include the reasons why an extension should be granted.

Public interest

(2) On application by a complainant who has not referred a complaint within the period referred to in subsection 250.31(1) or within an extended period described in subsection (1), the Chairperson may — if he or she is of the opinion that it is necessary in the public interest — permit the complainant to refer the complaint to the Complaints Commission within any reasonable period that the Chairperson may fix.

Direction or report is final

250.312 A direction or report of the Provost Marshal is final unless the complaint is referred to the Complaints Commission.

1998, c. 35, s. 82

95. Subsection 250.35(3) of the French version of the Act is replaced by the following:

Avis

(3) Le cas échéant, il avise par écrit de sa décision le plaignant, la personne qui fait l’objet de la plainte, le chef d’état-major de la défense ou le sous-ministre, selon le cas, le juge-avocat général et le grand prévôt. L’avis fait mention des motifs de sa décision.

1998, c. 35, s. 82

96. Paragraphs 250.36(b) and (c) of the French version of the Act are replaced by the following:

b) le chef d’état-major de la défense, dans le cas où un officier ou militaire du rang fait l’objet de la plainte;

c) le sous-ministre, dans le cas où un cadre supérieur du ministère fait l’objet de la plainte;

1998, c. 35, s. 82

97. (1) Subsection 250.38(1) of the English version of the Act is replaced by the following:

Public interest

250.38 (1) If the Chairperson considers it advisable in the public interest, the Chairperson may, at any time while conducting a review of a conduct complaint or an interference complaint, cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into the complaint.

1998, c. 35, s. 82

(2) Subsection 250.38(3) of the French version of the Act is replaced by the following:

Avis

(3) S’il décide de faire tenir une enquête, il transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.

1998, c. 35, s. 82

98. Subsection 250.4(1) of the French version of the Act is replaced by the following:

Audience

250.4 (1) Le président, s’il décide de convoquer une audience, désigne le ou les membres de la Commission qui la tiendront et transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.

1998, c. 35, s. 82

99. The portion of subsection 250.41(1) of the French version of the Act before paragraph (a) is replaced by the following:

Pouvoirs de la Commission

250.41 (1) Dans le cadre de toute audience, la Commission dispose, relativement à la plainte dont elle est saisie, des pouvoirs suivants :

1998, c. 35, s. 82

100. (1) Subsections 250.43(1) and (2) of the Act are replaced by the following:

Notice of hearing

250.43 (1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve on the complainant and the person who is the subject of the complaint a notice in writing of the time, date and place fixed for the hearing.

Convenience to be considered

(2) The Complaints Commission shall consider the convenience of the complainant and the person who is the subject of the complaint in fixing the time, date and place for the hearing.

1998, c. 35, s. 82

(2) Subsection 250.43(3) of the French version of the Act is replaced by the following:

Report de l’audience

(3) Si la plainte porte sur une conduite qui fait aussi l’objet d’une instance disciplinaire ou criminelle devant un tribunal de première instance, l’audience est différée jusqu’à la conclusion de l’instance.

1998, c. 35, s. 82

101. Section 250.44 of the French version of the Act is replaced by the following:

Droits des intéressés

250.44 Le plaignant, la personne qui fait l’objet de la plainte et toute autre personne qui convainc la Commission qu’elle a un intérêt direct et réel dans celle-ci doivent avoir toute latitude de présenter des éléments de preuve à l’audience, d’y contre-interroger les témoins et d’y faire des observations, en personne ou par l’intermédiaire d’un avocat.

1998, c. 35, s. 82

102. Subsection 250.49(2) of the French version of the Act is replaced by the following:

Exception

(2) Dans le cas où le grand prévôt fait l’objet de la plainte, c’est le chef d’état-major de la défense qui est chargé de la révision.

1998, c. 35, s. 82

103. Section 250.5 of the French version of the Act is replaced by the following:

Révision — plainte pour ingérence

250.5 (1) Sur réception du rapport établi au titre des articles 250.36, 250.39 ou 250.48, la plainte pour ingérence est révisée à la lumière des conclusions et recommandations qu’il contient par le chef d’état-major de la défense, dans le cas où la personne qui en fait l’objet est un officier ou militaire du rang, ou par le sous-ministre, dans le cas où elle est un cadre supérieur du ministère.

Exception

(2) Dans le cas où le chef d’état-major de la défense ou le sous-ministre fait l’objet de la plainte, c’est le ministre qui est chargé de la révision.

1998, c. 35, s. 82

104. Subsection 250.53(2) of the French version of the Act is replaced by the following:

Destinataires

(2) Il en transmet copie au ministre, au sous-ministre, au chef d’état-major de la défense, au juge-avocat général, au grand prévôt, au plaignant, à la personne qui fait l’objet de la plainte ainsi qu’à toute personne qui a convaincu la Commission qu’elle a un intérêt direct et réel dans la plainte.

1998, c. 35, s. 82

105. Section 251.2 of the Act is replaced by the following:

Witness fees and allowances

251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievance Board, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

106. The heading before section 267 of the Act is replaced by the following:

Limitation Periods, Liability and Exemptions

107. Subsection 269(1) of the Act is replaced by the following:

Limitation period

269. (1) Unless an action or other proceeding is commenced within two years after the date of the act, neglect or default complained of, no action or other proceeding lies against Her Majesty or any person for

(a) an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority;

(b) any neglect or default in the execution of this Act or any regulations or military or departmental duty or authority; or

Prosecutions

(1.1) A prosecution in respect of an offence — other than an offence under this Act, the Geneva Conventions Act or the Crimes Against Humanity and War Crimes Act — relating to an act, neglect or default described in subsection (1) may not be commenced after six months from the date of the act, neglect or default.

R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 56)

108. Section 272 of the Act is replaced by the following:

Arrest of dependants

272. The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.

109. The Act is amended by adding the following after section 273.6:

Five-year Review

Review

273.601 (1) The Minister shall cause an independent review of the following provisions, and their operation, to be undertaken:

(a) sections 29 to 29.28;

(b) Parts III and IV; and

Report to Parliament

(2) The Minister shall cause a report of the review to be laid before each House of Parliament within five years after the day on which this section comes into force, and within every five-year period following the tabling of a report under this subsection.

2001, c. 41, s. 102

110. Subsection 273.63(1) of the French version of the Act is replaced by the following:

Nomination du commissaire et durée du mandat

273.63 (1) Le gouverneur en conseil peut nommer, à titre inamovible pour une période maximale de cinq ans, un juge surnuméraire ou un juge à la retraite d’une juridiction supérieure qu’il charge de remplir les fonctions de commissaire du Centre de la sécurité des télécommunications.

R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 63)

111. Subsection 299(2) of the Act is replaced by the following:

Certificate of Judge Advocate General

(2) A certificate that appears to have been signed by the Judge Advocate General, or by any person whom the Judge Advocate General may appoint for that purpose, attesting that an officer or non-commissioned member was convicted or discharged absolutely under this Act of desertion or absence without leave or that the officer or non-commissioned member was or has been continuously absent without leave for six months or more, and setting out the date of commencement and, if applicable, the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence of the facts attested to in that certificate.

1998, c. 35, s. 90

112. Paragraph 302(d) of the Act is replaced by the following:

(d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievance Board, the Military Judges Inquiry Committee, a service tribunal, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or

113. The Act is amended by adding the following after section 306:

Applications for employment

307. Every person who uses or authorizes the use of an application form, for or relating to any of the following matters, that contains a question that by its terms requires the applicant to disclose a conviction for an offence referred to in paragraph 249.27(1)(a) or (b) is guilty of an offence and liable on summary conviction to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months, or to both:

(a) employment in any department set out in Schedule I to the Financial Administration Act;

(b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;

(d) employment in or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

114. The French version of the Act is amended by replacing the word “prévôt” with the words “grand prévôt” wherever it occurs in the following provisions:

(a) section 250.21;

(b) subsection 250.26(1);

(d) subsection 250.28(1);

(e) subsection 250.32(3);

(f) subsections 250.34(2) and (3);

(g) subsection 250.35(1);

(h) paragraph 250.36(e);

(i) paragraph 250.37(1)(d);

(j) subsection 250.38(5);

(k) section 250.39;

(l) section 250.48; and

(m) subsection 250.49(1).

115. The French version of the Act is amended by replacing the expressions “mise en cause” and “mise en cause par la plainte” with the expression “qui fait l’objet de la plainte” wherever they occur in the following provisions:

(a) section 250.23;

(b) subsection 250.3(3);

(d) subsections 250.37(1) and (3);

(e) subsection 250.38(4); and

(f) section 250.46.

TRANSITIONAL PROVISIONS

Military judges continuing in office

116. A person who, immediately before the coming into force of section 39 of this Act, held office as a military judge shall continue in office as if the person had been appointed under subsection 165.21(1) of the National Defence Act, as enacted by section 39 of this Act.

Members of Inquiry Committee continuing in office

117. A person who, immediately before the coming into force of section 43 of this Act, held office as a member of an Inquiry Committee established under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, shall continue in office as if the person had been appointed under subsection 165.29(1) of the National Defence Act, as enacted by section 43 of this Act.

Members of Compensation Committee continuing in office

118. A person who, immediately before the coming into force of section 43 of this Act, held office as a member of a Compensation Committee established under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, shall continue in office as a member of the Military Judges Compensation Committee as if the person had been appointed under subsection 165.31(1) of the National Defence Act, as enacted by section 43 of this Act.

Inquiry by Inquiry Committee

119. An inquiry under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, that, immediately before the coming into force of section 43 of this Act, had not been completed shall be continued as an inquiry under sections 165.29 and 165.3 of the National Defence Act, as enacted by section 43 of this Act.

Review by Compensation Committee

120. A review under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 39 of this Act, that, immediately before the coming into force of section 43 of this Act, had not been completed shall be continued as an inquiry under sections 165.31 to 165.35 of the National Defence Act, as enacted by section 43 of this Act.

Criminal record

121. Section 249.27 of the National Defence Act, as enacted by section 78 of this Act, applies to a person who, before the coming into force of section 78 of this Act, was convicted of an offence described in paragraph 249.27(1)(a) or (b) of the National Defence Act.

Limitation period

122. The limitation period prescribed by subsection 269(1) of the National Defence Act, as enacted by section 107 of this Act, applies only to acts, neglect or default that occurs after the coming into force of section 107 of this Act.

CONSEQUENTIAL AMENDMENTS

123. Section 96 of An Act to amend the National Defence Act and to make consequential amendments to other Acts, chapter 35 of the Statutes of Canada, 1998, is repealed.

124. Section 77 of the Public Safety Act, 2002, chapter 15 of the Statutes of Canada, 2004, is repealed.

125. (1) The Corrections and Conditional Release Act is amended by replacing every reference to section 140.3 of the National Defence Act with a reference to section 226.1 of the National Defence Act wherever it occurs in the following provisions:

(a) the portion of subsection 17(1) after paragraph (d) and before paragraph (e);

(b) the portion of subsection 18(2) before paragraph (a);

(d) subsections 119(1.1) and (1.2);

(e) subsection 120(1);

(f) subsection 120.2(3); and

(g) subsection 120.3.

(2) The Act is amended by replacing every reference to section 140.4 of the National Defence Act with a reference to section 226.2 of the National Defence Act wherever it occurs in the following provisions:

(a) section 120;

(b) subparagraph 120.2(1)(b)(i);

(d) subparagraph 125(1)(a)(v).

Explanatory Notes

Clause 65: Existing text of the heading:

Division 8

Clause 66: Existing text of subsection 204(1):

204. (1) Subject to subsection (3) and sections 215 to 218, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.

Clause 67: Existing text of section 215:

215. Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment.

Clause 68: Existing text of subsections 216(1) and (2):

216. (1) In this section and sections 217 and 218, “suspending authority” means any authority prescribed to be a suspending authority by the Governor in Council in regulations.

(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment.

Clause 69: Existing text of subsection 217(1):

217. (1) Where a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority and if on the review it appears to the suspending authority that the conduct of the offender, since the punishment was suspended, has been such as to justify a remission of the punishment, the suspending authority shall remit it.

Clause 70: Existing text of section 218:

218. (1) A suspending authority may, at any time while a punishment is suspended, direct the authority empowered to do so to commit the offender and, after the date of the committal order, that punishment ceases to be suspended.

(2) Where a punishment that has been suspended under subsection 215(1) is put into execution, the term of the punishment shall be deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.

Clause 71: New.

Clause 72: Relevant portion of section 230:

230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

Clause 73: Relevant portion of section 230.1:

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

Clause 74: Existing text of subsection 249.18(2):

(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years.

Clause 75: Existing text of subsection 249.21(1):

249.21 (1) The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.

Clause 76: New.

Clause 77: Existing text of subsection 249.25(1):

249.25 (1) Where a person is convicted of an offence under the Code of Service Discipline, the service tribunal shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

Clause 78: New.

Clause 79: Existing text of the definitions:

“military police” means the officers and non-commissioned members appointed under regulations for the purposes of section 156.

“Provost Marshal” means the Canadian Forces Provost Marshal.

Clause 80: (1) New.

(2) Existing text of subsection 250.1(11):

(11) Every member shall, before commencing the duties of office, take the following oath of office:

I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Police Complaints Commission in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Police Complaints Commission, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

Clause 81: (1) Existing text of subsection 250.18(2):

(2) A conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.

(2) New.

Clause 82: (1) Existing text of section 250.19:

250.19 (1) Any member of the military police who conducts or supervises a military police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person under this Division.

(2) For the purposes of this section, improper interference with an investigation includes intimidation and abuse of authority.

(2) New.

Clause 83: Existing text of section 250.2:

250.2 No complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time.

Clause 84: Relevant portion of subsection 250.21(2):

(2) The person who receives a complaint shall

...

(ii) in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and

(iii) in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.

Clause 85: Existing text of section 250.22:

250.22 As soon as practicable after receiving or being notified of a conduct complaint, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.

Clause 86: Existing text of subsection 250.24(2):

(2) The Chairperson shall send a notice in writing of the withdrawal to the Provost Marshal and the person who was the subject of the complaint.

Clause 87: Existing text of section 250.25:

250.25 The Provost Marshal shall establish and maintain a record of all complaints received under this Division and, on request, make available any information contained in that record to the Complaints Commission.

Clause 88: Existing text of subsection 250.26(2):

(2) If a conduct complaint is about the conduct of the Provost Marshal, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.

Clause 89: New.

Clause 90: (1) Existing text of subsection 250.27(1):

250.27 (1) On receiving or being notified of a conduct complaint, the Provost Marshal shall consider whether it can be disposed of informally and, with the consent of the complainant and the person who is the subject of the complaint, the Provost Marshal may attempt to resolve it informally.

(2) Existing text of subsection 250.27(3):

(3) No answer given or statement made by the complainant or the person who is the subject of the complaint in the course of attempting to resolve a complaint informally may be used in any disciplinary, criminal, civil or administrative proceedings, other than a hearing or proceeding in respect of an allegation that, with intent to mislead, the complainant or the person who is the subject of the complaint gave an answer or made a statement knowing it to be false.

(3) Relevant portion of subsection 250.27(5):

(5) If a direction is made under subsection (4), the Provost Marshal shall send to the complainant and the person who is the subject of the complaint a notice in writing setting out

...

(b) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.

(4) Existing text of subsection 250.27(6):

(6) If a conduct complaint is resolved informally,

(a) the details of its resolution must be set out in writing;

(b) the complainant and the person who is the subject of the complaint must give their written agreement to the resolution of the complaint; and

Clause 91: Relevant portion of subsection 250.28(3):

(3) If a direction is made under subsection (2), the Provost Marshal shall send to the complainant and, if the person who is the subject of the complaint was notified of the complaint under section 250.22, to that person, a notice in writing setting out

...

(b) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the direction.

Clause 92: (1) and (2) Relevant portion of section 250.29:

250.29 On the completion of an investigation into a conduct complaint, the Provost Marshal shall send to the complainant, the person who is the subject of the complaint and the Chairperson a report setting out

...

(d) the right of the complainant to refer the complaint to the Complaints Commission for review if the complainant is not satisfied with the disposition of the complaint.

Clause 93: Existing text of subsection 250.3(1):

250.3 (1) Within sixty days after receiving or being notified of a conduct complaint, the Provost Marshal shall, if the complaint has not been resolved or disposed of before that time, and then each thirty days afterwards until the complaint is dealt with, send to the following persons a report on the status of the complaint:

(a) the complainant;

(b) the person who is the subject of the complaint; and

Clause 94: Existing text of section 250.31:

250.31 (1) A complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may refer the complaint in writing to the Complaints Commission for review.

(2) If a complainant refers a complaint to the Complaints Commission under subsection (1),

(a) the Chairperson shall send to the Provost Marshal a copy of the complaint; and

(b) the Provost Marshal shall provide the Chairperson with a copy of the notice sent under subsection 250.27(5) or 250.28(3), or of the report sent under section 250.29, in respect of the complaint and all information and materials relevant to the complaint.

Clause 95: Existing text of subsection 250.35(3):

(3) If the Chairperson makes a direction, the Chairperson shall send to the complainant, the person who is the subject of the complaint, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a notice in writing setting out the direction and the reasons why it was made.

Clause 96: Relevant portion of section 250.36:

250.36 On the completion of an investigation into an interference complaint, the Chairperson shall prepare and send a report setting out a summary of the complaint and the Chairperson’s findings and recommendations to

...

(b) the Chief of the Defence Staff, in the case of a complaint against an officer or a non-commissioned member;

Clause 97: (1) Existing text of subsection 250.38(1):

250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

(2) Existing text of subsection 250.38(3):

(3) If the Chairperson decides to cause an investigation to be held, the Chairperson shall send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

Clause 98: Existing text of subsection 250.4(1):

250.4 (1) If the Chairperson decides to cause a hearing to be held, the Chairperson shall

(a) assign one or more members of the Complaints Commission to conduct the hearing; and

(b) send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

Clause 99: Relevant portion of subsection 250.41(1):

250.41 (1) When conducting a hearing, the Complaints Commission has, in relation to the complaint before it, power

Clause 100: (1) and (2) Existing text of section 250.43:

250.43 (1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve a notice in writing of the time and place appointed for the hearing on the complainant and the person who is the subject of the complaint.

(2) If a person on whom a notice is served wishes to appear before the Complaints Commission, the Complaints Commission must consider the convenience of that person in fixing the time and the place for the hearing.

(3) If the complaint relates to conduct that is also the subject of disciplinary or criminal proceedings before a court or tribunal of first instance, the hearing may not take place until the disciplinary or criminal proceedings are completed.

Clause 101: Existing text of section 250.44:

250.44 The Complaints Commission shall afford a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing to

(a) the complainant and the person who is the subject of the complaint, if they wish to appear; and

(b) any other person who satisfies the Complaints Commission that the person has a substantial and direct interest in the hearing.

Clause 102: Existing text of subsection 250.49(2):

(2) If the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.

Clause 103: Existing text of section 250.5:

250.5 (1) On receipt of a report under section 250.36, 250.39 or 250.48 in respect of an interference complaint, the complaint shall be reviewed in light of the findings and recommendations set out in the report by

(a) the Chief of the Defence Staff, if the person who is the subject of the complaint is an officer or a non-commissioned member; and

(b) the Deputy Minister, if the person who is the subject of the complaint is a senior official of the Department.

(2) If the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, the review shall be conducted by the Minister.

Clause 104: Existing text of subsection 250.53(2):

(2) A copy of the final report shall be sent to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal, the complainant, the person who is the subject of the complaint and all persons who have satisfied the Complaints Commission that they have a substantial and direct interest in the complaint.

Clause 105: Existing text of section 251.2:

251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military Police Complaints Commission, a board of inquiry or a commissioner taking evidence under this Act is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

Clause 106: Existing text of the heading:

Limitation of Civil Liabilities

Clause 107: Existing text of subsection 269(1):

269. (1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.

Clause 108: Existing text of section 272:

272. The dependants, as defined by regulation, of members of the Canadian Forces on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by officers and non-commissioned members appointed as described in section 156 and may be handed over to the appropriate authorities of that place.

Clause 109: New.

Clause 110: Existing text of subsection 273.63(1):

273.63 (1) The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.

Clause 111: Existing text of subsection 299(2):

(2) A certificate signed by the Judge Advocate General, or such person as the Judge Advocate General may appoint for that purpose, that an officer or non-commissioned member was convicted under this Act of desertion or absence without leave or had been continuously absent without leave for six months or more, and setting out the date of commencement and the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence that the officer or non-commissioned member was a deserter or absentee without leave during the period referred to in the certificate.

Clause 112: Relevant portion of section 302:

302. Every person is guilty of an offence and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or to both, where the person

...

(d) prints observations or uses words likely to influence improperly a board of inquiry, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), a service tribunal, a commissioner taking evidence under this Act or the Military Police Complaints Commission or any witness at any proceeding under Part II, III or IV, or to bring a proceeding under any of those Parts into disrepute; or

Clause 113: New.

An Act to amend the National Defence Act and to make consequential amendments to other Acts

Clause 123: Existing text of section 96:

96. (1) The Minister shall cause an independent review of the provisions and operation of this Act to be undertaken from time to time.

(2) The Minister shall cause the report on the review conducted under subsection (1) to be laid before each House of Parliament within five years after the day on which this Act is assented to, and within every five year period following the tabling of a report under this subsection.

Public Safety Act, 2002

Clause 124: Existing text of section 77:

77. The Act is amended by adding the following after section 165.27:

Reserve Military Judges Panel

165.28 There is established a panel, called the Reserve Military Judges Panel (in this section and sections 165.29 to 165.32 referred to as the “Panel”), to which the Governor in Council may name officers of the reserve force who have previously performed

(a) the duties of a military judge under this Act; or

(b) before September 1, 1999, the duties of a president of a Standing Court Martial, a presiding judge of a Special General Court Martial or a judge advocate of a General Court Martial or Disciplinary Court Martial.

165.29 (1) The Governor in Council may remove from the Panel for cause the name of any officer on the recommendation of an Inquiry Committee referred to in section 165.21.

(2) The name of an officer shall be removed from the Panel on the officer’s

(a) reaching the retirement age prescribed by regulations made by the Governor in Council; or

(b) voluntarily ceasing to be an officer of the reserve force.

(3) An officer may give notice in writing to the Chief Military Judge that the officer wishes their name to be removed from the Panel. The removal takes effect either on the day the notice is received by the Chief Military Judge or on a later day if one is specified in the notice.

165.3 An officer named to the Panel shall not engage in any business or professional activity that is incompatible with the duties that he or she may be required to perform under this Act.

165.31 (1) The Chief Military Judge may select any officer named to the Panel to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

(2) An officer who is performing duties pursuant to subsection (1) has, while performing those duties, all the powers and duties of a military judge.

(3) The Chief Military Judge may request any officer named to the Panel to undergo any training that may be specified by the Chief Military Judge.

165.32 An officer named to the Panel who is performing duties or undergoing training under section 165.31 shall be paid remuneration at the daily rate of 1/251 of the annual rate of pay of a military judge other than the Chief Military Judge.