Bill C-41

National Defence Act

Clause 2: (1) to (4) Existing text of the definitions:

“Grievance Board” means the Canadian Forces Grievance Board established by subsection 29.16(1);

“military judge” means a military judge appointed under subsection 165.21(1);

“Provost Marshal” means the Canadian Forces Provost Marshal;

(5) and (6) New.

Clause 3: (1) Relevant portion of subsection 12(3):

(3) The Treasury Board may make regulations

(a) prescribing the rates and conditions of issue of pay of military judges;

(2) New.

Clause 4: New.

Clause 5: New.

Clause 6: Existing text of section 29.11:

29.11 The Chief of the Defence Staff is the final authority in the grievance process.

Clause 7: (1) Existing text of subsection 29.12(1):

29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.

(2) Relevant portion of subsection 29.12(2):

(2) When referring a grievance to the Grievance Board, the Chief of the Defence Staff shall provide the Grievance Board with a copy of

...

(b) the decision made by each authority in respect of the grievance; and

Clause 8: Existing text of subsection 29.13(2):

(2) If the Chief of the Defence Staff does not act on a finding or recommendation of the Grievance Board, the Chief of the Defence Staff shall include the reasons for not having done so in the decision respecting the disposition of the grievance.

Clause 9: Existing text of section 29.14:

29.14 The Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, except

(a) the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; and

(b) the power to delegate under this section.

Clause 10: Existing text of the heading:

Canadian Forces Grievance Board

Clause 11: (1) Existing text of subsection 29.16(1):

29.16 (1) There is established a board, called the Canadian Forces Grievance Board, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

(2) and (3) Existing text of subsections 29.16(10) and (11):

(10) An officer or a non-commissioned member who is appointed as a member of the Grievance Board shall be seconded to the Grievance Board in accordance with section 27.

(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 Canadian Forces Grievance Board in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Canadian Forces Grievance Board, 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 12: Existing text of subsection 30(4):

(4) Subject to regulations made by the Governor in Council, where

(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, and

(b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,

the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.

Clause 13: Existing text of subsection 35(1):

35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.

Clause 14: Relevant portion of subsection 66(1):

66. (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

...

(b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.

Clause 15: New.

Clause 16: Existing text of section 101.1:

101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under Division 3, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Clause 17: Existing text of subsection 118(1):

118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to the tribunals referred to in the definition “service tribunal” in section 2, 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 and a commissioner taking evidence under this Act.

Clause 18: Existing text of section 137:

137. (1) Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of the attempt.

(2) Where, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be convicted of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

(3) An accused person who is convicted under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he was charged with attempting to commit.

Clause 19: Existing text of sections 140.3 and 140.4:

140.3 (1) Where a court martial imposes a punishment of imprisonment for life, the sentence to be pronounced shall be

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

(b) in respect of a person who has been convicted of an offence of high treason or an offence of first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;

(c) in respect of a person who has been convicted of an offence of second degree murder if that person has previously been convicted of culpable homicide that is murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;

(d) in respect of a person who has been convicted of an offence of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or any greater number of years, not being more than twenty-five, that has been substituted under subsection (2); and

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

(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

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

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

140.4 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.

(2) The court martial may only make an order under subsection (1) if it is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the person, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.

(3) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or ten years, whichever is less.

(3.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender 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 offender may be released on full parole is one half of the sentence or ten 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 offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

(4) For greater certainty, the paramount principles that are to guide the court martial under this section are denunciation and specific or general deterrence, with rehabilitation of the person, in all cases, being subordinate to those paramount principles.

Clause 20: Existing text of subsection 142(2):

(2) If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.

Clause 21: New.

Clause 22: (1) Existing text of subsection 147.1(1):

147.1 (1) Where a person is convicted by a court martial of an offence

(a) in the commission of which violence against a person was used, threatened or attempted,

(b) that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance,

(c) relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

(d) that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code,

the court martial shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court martial decides that it is so desirable, the court martial shall so order.

(2) Existing text of subsection 147.1(3):

(3) Unless the order specifies otherwise, an order made under subsection (1) against a person does not apply to prohibit the possession of any thing in the course of the person’s duties or employment as a member of the Canadian Forces.

Clause 23: (1) to (3) Existing text of section 147.2:

147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,

(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and

(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,

and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.

Clause 24: Existing text of the heading and section 148:

Sentences

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

Clause 25: Existing text of the heading and sections 150 and 151:

Ignorance of Law

150. The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

Civil Defences

151. All rules and principles from time to time followed in the civil courts that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

Clause 26: Relevant portion of the definition:

“designated offence” means

...

(d) an offence under this Act that is a criminal organization offence; or

Clause 27: New.

Clause 28: (1) Relevant portion of section 156:

156. Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may

(2) New.

Clause 29: Existing text of subsection 158(3):

(3) The officer or non-commissioned member in charge of a guard or a guard-room or an officer or non-commissioned member appointed for the purposes of section 156 shall receive and keep a person under arrest who is committed to his or her custody.

Clause 30: Existing text of subsection 158.6(2):

(2) A direction to release a person with or without conditions may, on application, be reviewed by

(a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

(b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

Clause 31: New.

Clause 32: Relevant portion of section 159.2:

159.2 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

...

(b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of justice; and

(c) any other just cause has been shown, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

Clause 33: New.

Clause 34: New.

Clause 35: Existing text of subsection 163(1.1):

(1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

Clause 36: (1) Relevant portion of subsection 164(1):

164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

(a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

(2) Existing text of subsection 164(1.1):

(1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

(3) Existing text of subsection 164(3):

(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.

(4) New.

Clause 37: Existing text of subsection 165(2):

(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.

Clause 38: (1) and (2) Existing text of subsections 165.1(2) and (2.1):

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

(2.1) The Inquiry Committee is deemed to have the powers of a court martial.

Clause 39: (1) New.

(2) Existing text of subsection 165.12(2):

(2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

(3) New.

Clause 40: New.

Clause 41: Existing text of sections 165.21 and 165.22:

165.21 (1) The Governor in Council may appoint officers who are barristers or advocates of at least ten years standing at the bar of a province to be military judges.

(2) A military judge holds office during good behaviour for a term of five years but may be removed by the Governor in Council for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.

(2.1) The Inquiry Committee is deemed to have the powers of a court martial.

(3) A military judge is eligible to be re-appointed on the expiry of a first or subsequent term of office on the recommendation of a Renewal Committee established under regulations made by the Governor in Council.

(4) A military judge ceases to hold office on reaching the retirement age prescribed by the Governor in Council in regulations.

165.22 (1) The rates and conditions of issue of pay of military judges shall be prescribed by the Treasury Board in regulations.

(2) The remuneration of military judges shall be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council.

Clause 42: New.

Clause 43: Existing text of section 165.24:

165.24 The Governor in Council may designate a military judge to be the Chief Military Judge.

Clause 44: Existing text of section 165.26:

165.26 The Chief Military Judge may authorize any military judge to perform the duties and functions of the Chief Military Judge.

Clause 45: New.

Clause 46: New.

Clause 47: (1) Existing text of subsections 167(2) and (3):

(2) The senior member of the panel must be an officer of or above the rank of colonel.

(3) If the accused person is an officer, all of the members of the panel must be officers.

(2) Existing text of subsections 167(5) to (7):

(5) If the accused person is of the rank of colonel, all of the members of the panel, except the senior member, must be of or above the rank of lieutenant-colonel.

(6) If the accused person is of the rank of lieutenant-colonel, at least two of the members of the panel must be of or above the rank of lieutenant-colonel.

(7) If the accused person is a non-commissioned member, two non-commissioned members who are of the rank of warrant officer or above must be appointed as members of the panel and the other three members must be officers.

Clause 48: Relevant portion of section 168:

168. None of the following persons may sit as a member of the panel of a General Court Martial:

...

(d) an officer or non-commissioned member appointed for the purposes of section 156;

(e) an officer below the rank of captain;

Clause 49: Existing text of subsection 179(1):

179. (1) A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to

(a) the attendance, swearing and examination of witnesses;

(b) the production and inspection of documents;

(c) the enforcement of its orders; and

(d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.

Clause 50: Existing text of the heading and section 180:

Admission to Courts Martial

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.

(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary

(a) in the interests of public safety, defence or public morals;

(b) for the maintenance of order or the proper administration of military justice; or

(c) to prevent injury to international relations.

(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.

(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.

Clause 51: Existing text of section 181:

181. (1) Subject to this Act, the rules of evidence at trials by court martial shall be such as are established by regulations made by the Governor in Council.

(2) No regulation made under this section is effective until it has been published in the Canada Gazette and every such regulation shall be laid before Parliament within fifteen days after it is made or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session.

Clause 52: (1) and (2) Existing text of section 182:

182. (1) Such classes of documents and records as are prescribed in regulations made by the Governor in Council may be admitted, as evidence of the facts therein stated, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of those classes of documents and records or copies thereof shall be as prescribed in those regulations.

(2) A court martial may receive, as evidence of the facts therein stated, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:

(a) where the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;

(b) where the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and

(c) at any time before the trial, the party served with a copy of the declaration pursuant to paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.

Clause 53: Existing text of subsection 184(3):

(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.

Clause 54: New.

Clause 55: Relevant portion of the definition:

“peace officer” means

...

(b) an officer or a non-commissioned member of the Canadian Forces who is appointed for the purpose of section 156 or employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.

Clause 56: Relevant portion of subsection 196.12(1):

196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of justice to do so and that there are reasonable grounds to believe

Clause 57: Existing text of subsection 202.12(1.1):

(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.

Clause 58: (1) Relevant portion of subsection 202.121(7):

(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

...

(c) that a stay is in the interests of the proper administration of justice.

(2) and (3) Relevant portion of subsection 202.121(8):

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

...

(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;

Clause 59: New.

Clause 60: (1) Relevant portion of subsection 202.23(2):

(2) An officer, a non-commissioned member appointed for the purposes of section 156, or any other peace officer within the meaning of the Criminal Code, may arrest an accused person without a warrant if they have reasonable grounds to believe that the accused person

(2) Existing text of subsection 202.23(2.1):

(2.1) An officer, a non-commissioned member or another peace officer who makes an arrest under subsection (2) may, as soon as possible, release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

(3) Relevant portion of subsection 202.23(2.2):

(2.2) The officer, non-commissioned member or other peace officer shall not release the accused person if they believe on reasonable grounds

Clause 61: Existing text of subsection 202.25(1):

202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

Clause 62: New.