GreatNorthCollective/greatnorth-canada-federal-laws-text huggingface dataset:
National Defence Act — N-5 159
Hearing by military judge 159 (1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody. Applicable operational considerations (2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed. R.S., 1985, c. N-5, s. 159; R.S., 1985, c. 31 (1st Supp.), s. 52; 1998, c. 35, s. 42
National Defence Act — N-5 159.1
Onus on Canadian Forces 159.1 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made. 1998, c. 35, s. 42
National Defence Act — N-5 159.2
Justification for retention in custody 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: (a) custody is necessary to ensure the person’s attendance before a court martial or civil court to be dealt with according to law; (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 military justice; and (c) custody is necessary to maintain public trust in the administration of military justice, 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. 1998, c. 35, s. 42; 2013, c. 24, s. 32 2019, c. 15, s. 21
National Defence Act — N-5 159.3
Onus on person in custody 159.3 (1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified. Release on undertaking (2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified. 1998, c. 35, s. 42
National Defence Act — N-5 159.31
Direction — no communication 159.31 If a military judge directs that a person be retained in custody, the military judge may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the military judge considers necessary. 2019, c. 15, s. 22
National Defence Act — N-5 159.4
Release with or without undertaking 159.4 (1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate. Variation of undertaking (2) The undertaking under which a person is released may be varied (a) by direction of a military judge on application with reasonable notice being given; or (b) with the written consent of the person and the Director of Military Prosecutions. 1998, c. 35, s. 42
National Defence Act — N-5 159.5
Hearing may be adjourned 159.5 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody. 1998, c. 35, s. 42
National Defence Act — N-5 159.6
Alternate means of hearing 159.6 (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device. Representations and factors to be considered (2) In deciding whether to make the direction, the military judge shall take into account (a) the location of the person in custody; (b) the gravity of the offence; (c) the circumstances under which the unit or element detaining the person in custody is deployed; (d) the availability of counsel for the Canadian Forces and the person in custody; (e) the limitations of available telecommunications devices; (f) the time required to bring the person in custody and the person’s counsel before the military judge; and (g) any other matter that the military judge considers relevant. 1998, c. 35, s. 42
National Defence Act — N-5 159.7
Reasons 159.7 (1) The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction. Consideration of victim’s safety and security (2) If the military judge directs that a person be released, with or without conditions, the military judge shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence. Copy to victim (3) The military judge shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim. 1998, c. 35, s. 42 2019, c. 15, s. 23
National Defence Act — N-5 159.8
Review after 90 days 159.8 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2. 1998, c. 35, s. 42
National Defence Act — N-5 159.9
Review of direction 159.9 (1) At any time before the commencement of a person’s trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody. Application of provisions (2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section. 1998, c. 35, s. 42
National Defence Act — N-5 159.91
Regulations 159.91 A direction to retain a person in custody or impose conditions on their release is cancelled in the circumstances prescribed in regulations made by the Governor in Council. 2013, c. 24, s. 33
National Defence Act — N-5 160
Definition of commanding officer 160 In this Division, commanding officer , in respect of a person charged with having committed a service offence or a service infraction, means the commanding officer of the person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the person. R.S., 1985, c. N-5, s. 160; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 42 2019, c. 15, s. 24
National Defence Act — N-5 161
Laying of charge 161 (1) Proceedings against a person who is alleged to have committed a service offence or a service infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council. Duty to act expeditiously (2) If the person is retained in custody or released from custody with conditions, a charge must be laid as expeditiously as the circumstances permit. R.S., 1985, c. N-5, s. 161; 1998, c. 35, s. 42; 2013, c. 24, s. 34 2019, c. 15, s. 24
National Defence Act — N-5 161.1
Referral of charge — service offence 161.1 (1) After a person is charged with having committed a service offence, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions. Referral of charge — service infraction (2) After a person is charged with having committed a service infraction, the charge must be referred, in accordance with regulations made by the Governor in Council, to an officer who is a commanding officer in respect of the person. 1998, c. 35, s. 42 2019, c. 15, s. 24
National Defence Act — N-5 162
Duty to act expeditiously 162 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit. R.S., 1985, c. N-5, s. 162; 1998, c. 35, s. 42; 2008, c. 29, s. 3
National Defence Act — N-5 162.3
Definitions 162.3 The following definitions apply in this Division. commanding officer , in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. ( commandant ) delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. ( officier délégué ) scale of sanctions means the scale of sanctions set out in subsection 162.7. ( échelle des sanctions ) superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. ( commandant supérieur ) 1998, c. 35, s. 42 2019, c. 15, s. 25
National Defence Act — N-5
commanding officer , in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. ( commandant )
National Defence Act — N-5
delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. ( officier délégué )
National Defence Act — N-5
scale of sanctions means the scale of sanctions set out in subsection 162.7. ( échelle des sanctions )
National Defence Act — N-5
superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. ( commandant supérieur )
National Defence Act — N-5 162.4
Summary hearing 162.4 Service infractions may be dealt with only by summary hearing. 2019, c. 15, s. 25
National Defence Act — N-5 162.5
Not offence 162.5 A service infraction is not an offence under this Act. 2019, c. 15, s. 25
National Defence Act — N-5 162.6
Prior trial — offence 162.6 (1) If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state. Prior summary hearing — service infraction (2) If a summary hearing has been conducted in respect of a service infraction that a person is alleged to have committed, the person may be charged, dealt with and tried in respect of an offence arising from the same facts, regardless of whether or not the person was found to have committed the service infraction. Answer or statement — restriction (3) No answer given or statement made by a person at their summary hearing may be used or be receivable against them in any disciplinary, criminal or civil proceeding, other than at a hearing or proceeding in respect of an allegation that they gave the answer or made the statement knowing it to be false. 2019, c. 15, s. 25
National Defence Act — N-5 162.7
Scale of sanctions 162.7 The following sanctions may be imposed in respect of a service infraction, and each is a sanction less than every sanction preceding it: (a) reduction in rank; (b) severe reprimand; (c) reprimand; (d) deprivation of pay, and of any allowance prescribed in regulations made by the Governor in Council, for not more than 18 days; and (e) minor sanctions prescribed in regulations made by the Governor in Council. 2019, c. 15, s. 25
National Defence Act — N-5 162.8
Reduction in rank 162.8 (1) The sanction of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private. Restrictions (2) The sanction of reduction in rank is not to involve (a) reduction to a rank lower than that to which the person who has committed a service infraction can be reduced under regulations; and (b) in the case of a commissioned officer, reduction to a rank lower than commissioned rank. 2019, c. 15, s. 25
National Defence Act — N-5 162.9
Objectives of sanctions 162.9 The imposition of sanctions is intended to achieve 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; (c) to denounce indisciplined conduct; (d) to deter persons from committing service infractions; (e) to assist in rehabilitating persons who have committed service infractions; (f) to promote a sense of responsibility in persons who have committed service infractions. 2019, c. 15, s. 25
National Defence Act — N-5 162.91
Fundamental principle 162.91 Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it. 2019, c. 15, s. 25
National Defence Act — N-5 162.92
Other principles 162.92 Sanctions must be imposed in accordance with the following other principles: (a) a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that (i) the person, in committing the service infraction, abused their rank or other position of trust or authority, (ii) the service infraction was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, or (iii) the commission of the service infraction resulted in harm to the conduct of a military operation or any military training; (b) a sanction should be similar to sanctions imposed on persons for similar service infractions committed in similar circumstances; and (c) a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces. 2019, c. 15, s. 25
National Defence Act — N-5 162.93
Consideration of indirect consequences 162.93 In determining the sanction to be imposed against a person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the finding that the person committed a service infraction, or of the sanction. 2019, c. 15, s. 25
National Defence Act — N-5 162.94
Delegation 162.94 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command. 2019, c. 15, s. 25
National Defence Act — N-5 162.95
Commanding officer’s obligation 162.95 A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163, (a) conduct a summary hearing in respect of the charge; (b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer. 2019, c. 15, s. 25
National Defence Act — N-5 163
Jurisdiction 163 (1) A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied: (a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member; (b) having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate; (c) there are no reasonable grounds to believe that the person charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings; and (d) having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing. Prohibition on conducting hearing (2) A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she (a) carried out or directly supervised the investigation of the service infraction; (b) issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the service infraction; or (c) laid the charge or caused it to be laid. However, he or she may conduct such a hearing if, having regard to all the circumstances, it is not practicable for any other superior commander, commanding officer or delegated officer to conduct the hearing. R.S., 1985, c. N-5, s. 163; R.S., 1985, c. 31 (1st Supp.), ss. 53, 60; 1991, c. 43, s. 14; 1998, c. 35, s. 42; 2008, c. 29, s. 4; 2013, c. 24, s. 35 2019, c. 15, s. 25
National Defence Act — N-5 163.1
Sanctions imposed by superior commander 163.1 (1) A superior commander who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in section 162.7. Sanctions imposed by commanding officer (2) A commanding officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e). Sanctions imposed by delegated officer (3) A delegated officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the following sanctions: (a) a sanction referred to in paragraph 162.7(d) for not more than seven days; (b) minor sanctions referred to in paragraph 162.7(e). 1998, c. 35, s. 42 2019, c. 15, s. 25
National Defence Act — N-5 163.2
Obligation after referral 163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163, (a) conduct a summary hearing in respect of the charge; (b) decide not to proceed with the charge if, in his or her opinion, it should not be proceeded with; or (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer. 2019, c. 15, s. 25
National Defence Act — N-5 163.3
Subsequent summary hearing proceedings not precluded 163.3 A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time. 2019, c. 15, s. 25
National Defence Act — N-5 163.4
Limitation period 163.4 A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed. 2019, c. 15, s. 25
National Defence Act — N-5 163.5
No territorial limitation 163.5 Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada. 2019, c. 15, s. 25
National Defence Act — N-5 163.6
Chief of the Defence Staff and other military authorities 163.6 (1) The review authorities in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing are the Chief of the Defence Staff and any other military authorities that are prescribed by the Governor in Council in regulations. When authorities may act (2) A review authority in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing may act on its own initiative or on application, made in accordance with regulations made by the Governor in Council, of the person found to have committed the service infraction. 2019, c. 15, s. 25
National Defence Act — N-5 163.7
Authority to quash 163.7 (1) A review authority may quash a finding, by an officer who conducted a summary hearing, that a person has committed a service infraction. Effect of complete quashing (2) If a finding that a person has committed a service infraction is quashed and no other such finding was made at the summary hearing, every sanction imposed as a result of the quashed finding is also quashed and a new summary hearing may be held in relation to the service infraction as if no previous summary hearing had been held. Effect of partial quashing (3) In the case where more than one finding has been made that a person has committed a service infraction and a review authority quashes one or more but not all of them, if a sanction imposed is in excess of any that may be imposed in respect of the remaining findings or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate. 2019, c. 15, s. 25
National Defence Act — N-5 163.8
Substitution of invalid or unsubstantiated findings 163.8 (1) A review authority may substitute a new finding for any finding that a person has committed a service infraction that was invalidly made or that cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears to the review authority that the officer who conducted the summary hearing was satisfied of the facts that establish the service infraction specified or involved in the new finding. Effect on sanction (2) If a new finding is substituted and a sanction imposed in respect of the original finding is in excess of a sanction that may be imposed in respect of the new finding or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate. 2019, c. 15, s. 25
National Defence Act — N-5 163.9
Authority to substitute 163.9 (1) A review authority may substitute for any invalid sanction imposed by an officer who conducted a summary hearing any new sanction or sanctions that it considers appropriate. Condition applicable to new sanction (2) If a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than that other sanction. 2019, c. 15, s. 25