GreatNorthCollective/greatnorth-canada-federal-laws-text huggingface dataset:
National Defence Act — N-5 165.35
Other inquiries 165.35 (1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1). Report (2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee. Continuance of duties (3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee. 2013, c. 24, s. 45
National Defence Act — N-5 165.36
Extension 165.36 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report. 2013, c. 24, s. 45
National Defence Act — N-5 165.37
Minister’s duties 165.37 (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate. Response (2) The Minister shall respond to a report within six months after receiving it. 2013, c. 24, s. 45
National Defence Act — N-5 166
Jurisdiction 166 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence. R.S., 1985, c. N-5, s. 166; 1998, c. 35, s. 42
National Defence Act — N-5 166.1
Punishment limitation 166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine. 2008, c. 29, s. 9
National Defence Act — N-5 167
Composition 167 (1) A General Court Martial is composed of a military judge and a panel of five members. Rank of senior member (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel. (3) [Repealed, 2013, c. 24, s. 47] Ranks for trial of brigadier-general or above (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel. Rank for trial of colonel (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel. Rank for trial of lieutenant-colonel or lower-ranked officer (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person. Rank for trial of non-commissioned member (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant. R.S., 1985, c. N-5, s. 167; 1992, c. 16, s. 3; 1998, c. 35, s. 42; 2013, c. 24, s. 47
National Defence Act — N-5 168
Ineligibility to serve 168 None of the following persons may sit as a member of the panel of a General Court Martial: (a) an officer or non-commissioned member who is a lawyer or notary; (b) a witness for the prosecution or the accused person; (c) the commanding officer of the accused person; (d) a member of the military police; (e) an officer below the rank of captain; (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces. R.S., 1985, c. N-5, s. 168; 1992, c. 16, s. 4; 1998, c. 35, s. 42; 2013, c. 24, s. 48
National Defence Act — N-5 173
Jurisdiction 173 A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence. R.S., 1985, c. N-5, s. 173; 1992, c. 16, s. 6; 1998, c. 35, s. 42; 2008, c. 29, s. 11
National Defence Act — N-5 174
Composition 174 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial. R.S., 1985, c. N-5, s. 174; 1992, c. 16, s. 6; 1998, c. 35, s. 42
National Defence Act — N-5 175
Punishment limitation 175 A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine. R.S., 1985, c. N-5, s. 175; 1991, c. 43, s. 16; 1998, c. 35, s. 42; 2008, c. 29, s. 12
National Defence Act — N-5 179
Courts martial 179 (1) A court martial has the same powers, rights and privileges — including 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; (c) the enforcement of its orders; and (d) all other matters necessary or proper for the due exercise of its jurisdiction. Military judges (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial. R.S., 1985, c. N-5, s. 179; R.S., 1985, c. 31 (1st Supp.), s. 56; 1998, c. 35, s. 42; 2013, c. 24, s. 49(E)
National Defence Act — N-5 180
Proceedings public 180 (1) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings. Exception (2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security. Factors to be considered (3) In determining whether the order is in the interest of the proper administration of military justice, the military judge shall consider (a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings; (c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of; (d) whether any witness needs the order for their security or to protect them from intimidation or retaliation; (e) the protection of military justice system participants who are involved in the proceedings; (f) whether effective alternatives to the making of the order are available in the circumstances; (g) the salutary and deleterious effects of the order; and (h) any other factor that the military judge considers relevant. No adverse inference (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. Reasons to be stated (5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order. Witnesses (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge. Clearing court (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared. R.S., 1985, c. N-5, s. 180; 1992, c. 16, s. 8; 1998, c. 35, s. 43; 2001, c. 41, s. 101; 2013, c. 24, s. 50 2019, c. 15, s. 27 2019, c. 15, s. 63
National Defence Act — N-5 180.01
Definition of record 180.01 For the purposes of sections 180.02 to 180.08, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence. 2019, c. 15, s. 27
National Defence Act — N-5 180.02
Production of record to accused 180.02 (1) Except in accordance with sections 180.03 to 180.08, no record relating to a complainant or a witness shall be produced to an accused person in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (a) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code ; (b) any offence under the Criminal Code , as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involved a violation of the complainant’s sexual integrity and would be an offence referred to in paragraph (a) if it had occurred on or after that day. Application of provisions (2) Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record relating to the complainant or a witness that is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness, as the case may be, has expressly waived the application of those sections. Duty of prosecutor to give notice (3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that the record is in the prosecutor’s possession or control, but, in doing so, the prosecutor shall not disclose the record’s contents. 2019, c. 15, s. 27
National Defence Act — N-5 180.03
Application for production 180.03 (1) An accused person who seeks the production of a record may make an application for its production to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial. Form and content of application (2) The application must be made in writing and set out (a) particulars identifying the record that the accused person seeks to have produced and the name of the person who has possession or control of the record; and (b) the grounds on which the accused person relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. Insufficient grounds (3) Any one or more of the following assertions by the accused person are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (a) the record exists; (b) the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; (c) the record relates to the incident that is the subject matter of the proceedings; (d) the record may disclose a prior inconsistent statement of the complainant or witness; (e) the record may relate to the credibility of the complainant or witness; (f) the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling; (g) the record may reveal allegations of sexual abuse of the complainant by a person other than the accused person; (h) the record relates to the sexual activity of the complainant with any person, including the accused person; (i) the record relates to the presence or absence of a recent complaint; (j) the record relates to the complainant’s sexual reputation; (k) the record was made close in time to the complaint or to the activity that forms the subject matter of the charge against the accused person. Service of application (4) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused person, the record relates, at least 14 days before the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice. Service on other persons (5) The military judge may, at any time, order that the application be served on any person to whom he or she considers the record may relate. 2019, c. 15, s. 27
National Defence Act — N-5 180.04
Hearing in private 180.04 (1) The military judge shall hold a hearing in private to determine whether to order the person who has possession or control of the record to produce it to the military judge for review. Persons who may appear at hearing (2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing. Right to counsel (3) The military judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel. Costs (4) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing. 2019, c. 15, s. 27
National Defence Act — N-5 180.05
Order to produce record for review 180.05 (1) The military judge may order the person who has possession or control of the record to produce the record or a part of the record to the military judge for review if, after the hearing, the military judge is satisfied that (a) the application was made in accordance with subsections 180.03(2) to (5); (b) the accused person has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (c) the production of the record is necessary in the interests of military justice. Factors to be considered (2) In determining whether to make the order, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the military judge shall take the following factors into account: (a) the extent to which the record is necessary for the accused person to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process. 2019, c. 15, s. 27
National Defence Act — N-5 180.06
Review of record by military judge 180.06 (1) If the military judge has ordered the production of the record or a part of the record for review, the military judge shall review it in the absence of the parties to determine whether the record or the part of the record should be produced to the accused person. Hearing in private (2) The military judge may hold a hearing in private if he or she considers that it will assist in making the determination. Provisions re hearing (3) Subsections 180.04(2) to (4) apply in the case of a hearing held under subsection (2). 2019, c. 15, s. 27
National Defence Act — N-5 180.08
Reasons for decision 180.08 The military judge shall provide reasons in writing for ordering or not ordering the production of the record or a part of the record under subsection 180.05(1) or 180.07(1). 2019, c. 15, s. 27
National Defence Act — N-5 181
Rules of evidence 181 (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial. Publication (2) No rule made under this section is effective until it has been published in the Canada Gazette , and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made. R.S., 1985, c. N-5, s. 181; 2013, c. 24, s. 51
National Defence Act — N-5 182
Admission of documents and records 182 (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules. Statutory declarations admissible, subject to conditions (2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act , subject to the following conditions: (a) if 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) if 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 under 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. R.S., 1985, c. N-5, s. 182; 2013, c. 24, s. 52
National Defence Act — N-5 183
Procurement of attendance of witnesses 183 (1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured. Exception (1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious. Procurement of attendance in exceptional cases (2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2. Reimbursement of accused for fees and expenses (3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness. Rights of accused preserved (4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire. R.S., 1985, c. N-5, s. 183; 1998, c. 35, s. 44
National Defence Act — N-5 183.1
Support person — witnesses under 18 or with disability 183.1 (1) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice. Other witnesses (2) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice. Factors to be considered (3) In determining whether to make an order under subsection (2), the military judge shall consider (a) the witness’s age; (b) the witness’s mental or physical disabilities, if any; (c) the nature of the offence; (d) the nature of any relationship between the witness and the accused person; (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (f) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and (g) any other factor that the military judge considers relevant. Witness not to be support person (4) The military judge shall not permit a witness to be a support person unless the military judge is of the opinion that doing so is necessary for the proper administration of military justice. No communication while testifying (5) The military judge may order that the support person and the witness not communicate with each other while the witness testifies. No adverse inference (6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (2). 2019, c. 15, s. 28