GreatNorthCollective/greatnorth-canada-federal-laws-text huggingface dataset:
National Defence Act — N-5
assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; ( évaluation )
National Defence Act — N-5
disposition means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4); ( décision )
National Defence Act — N-5
medical practitioner means a person who is entitled to practise medicine by the laws of a province; ( médecin )
National Defence Act — N-5
Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code ; ( commission d’examen )
National Defence Act — N-5
significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. ( risque important pour la sécurité du public )
National Defence Act — N-5 198
Presumption of fitness 198 (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial. Court directs issue to be tried (2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial. Burden of proof (3) An accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial. Order for assessment (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person. Subsequent proceedings (5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial. R.S., 1985, c. N-5, s. 198; 1991, c. 43, s. 18
National Defence Act — N-5 199
Postponing trial of issue 199 (1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct. Issue not tried (2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried. R.S., 1985, c. N-5, s. 199; 1991, c. 43, s. 18
National Defence Act — N-5 200
Trial proceeds where accused fit to stand trial 200 (1) Where the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen. Procedure where accused unfit to stand trial (2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall (a) set aside any plea that has been made; and (b) hold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay. Order for assessment (3) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person. R.S., 1985, c. N-5, s. 200; 1991, c. 43, s. 18; 2005, c. 22, s. 61(F)
National Defence Act — N-5 201
Disposition 201 (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances: (a) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or (b) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate. Treatment not a condition (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person. R.S., 1985, c. N-5, s. 201; 1991, c. 43, s. 18; 1997, c. 18, s. 130 2014, c. 6, s. 22
National Defence Act — N-5 202.1
Where Review Board or chairperson sends accused back to court martial 202.1 (1) Where a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge. Convening court martial (2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen. Custody in hospital (3) Notwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained. Burden and standard of proof (4) In proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities. 1991, c. 43, s. 18; 1998, c. 35, s. 49
National Defence Act — N-5 202.11
Accused person to remain in hospital 202.11 Notwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained. 1991, c. 43, s. 18
National Defence Act — N-5 202.12
Prima facie case 202.12 (1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial (a) not later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; or (b) at any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person. Extension of time for holding inquiry (1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if he or she 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 military justice. Where prima facie case not made (2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge. 1991, c. 43, s. 18; 1993, c. 34, s. 94(F); 1997, c. 18, s. 132; 1998, c. 35, s. 50; 2005, c. 22, ss. 48, 61(F); 2008, c. 29, s. 18; 2013, c. 24, s. 57
National Defence Act — N-5 202.121
tion 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and (d) any other factor that the court martial considers relevant. Effect of stay (9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code . 2005, c. 22, s. 49; 2008, c. 29, s. 19; 2013, c. 24, s. 58 2014, c. 6, s. 23(F)
National Defence Act — N-5 202.13
Defence of mental disorder 202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. Burden of proof (3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue. Assessment order (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person. 1991, c. 43, s. 18
National Defence Act — N-5 202.14
Finding of not responsible on account of mental disorder 202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder. Effects (2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but (a) the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence; (b) any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence; (c) any court martial or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence; (d) [Repealed, 1998, c. 35, s. 51] (e) the finding may be considered in making an order under Division 3 in respect of that person; (f) [Repealed, 2019, c. 15, s. 33] (g) the finding does not include a finding or determination respecting civil liability; and (h) the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence. Finding not previous conviction (3) A finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions. 1991, c. 43, s. 18; 1998, c. 35, s. 51; 2005, c. 25, s. 30; 2007, c. 5, s. 3; 2012, c. 1, ss. 152, 160 2019, c. 15, s. 33 2019, c. 15, s. 46
National Defence Act — N-5 202.15
Disposition hearing 202.15 (1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay. Assessment order (2) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person. 1991, c. 43, s. 18; 2005, c. 22, s. 61(F)
National Defence Act — N-5 202.16
Disposition 202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances: (a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public; (b) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or (c) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate. Treatment not a condition (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person. 1991, c. 43, s. 18; 1997, c. 18, s. 133 2014, c. 6, s. 24
National Defence Act — N-5 202.162
Referral to court martial for review 202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge. Convening court martial (2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding. Review of finding by court martial (3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder. Finding not revoked (4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession. Assessment order (5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person. 2014, c. 6, s. 25
National Defence Act — N-5 202.17
Conditions for custody 202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless (a) the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody; (b) custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code ; or (c) the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e). Report of medical practitioner in writing (2) For the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing. No treatment order on assessment (3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment. 1991, c. 43, s. 18; 1998, c. 35, ss. 52(E), 92; 2005, c. 22, s. 50
National Defence Act — N-5 202.18
No custody or release orders during assessment 202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence. Variation of assessment order (2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances. 1991, c. 43, s. 18; 1998, c. 35, ss. 53, 92; 2005, c. 22, s. 51
National Defence Act — N-5 202.19
Assessment report 202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person. Assessment report to be filed with court (2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial. Distribution of assessment report (3) Subject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person. Assessment report part of record (4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared. 1991, c. 43, s. 18; 2005, c. 22, s. 52
National Defence Act — N-5 202.2
Effective date of disposition 202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code . 1991, c. 43, s. 18; 2005, c. 22, s. 53
National Defence Act — N-5 202.201
e opportunity to communicate privately with counsel if they are represented by counsel. Determination of mental condition of accused person (15) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement. Victim impact statement (16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim. Procedure (17) A victim’s statement 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 victim statement (18) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate. Consideration by court martial (19) 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 making or reviewing the disposition. Copy of statement (20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel. Inquiry by court martial (21) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement. Adjournment (22) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice. (23) [Repealed, 2019, c. 15, s. 65] 2013, c. 24, s. 59 2014, c. 6, ss. 26, 32 2019, c. 15, s. 65