Second Session, Thirty-ninth Parliament,
56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008CHAPTER 29
An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act
ASSENTED TO
18th JUNE, 2008
BILL C-60
SUMMARY
This enactment amends certain provisions of the National Defence Act that govern the military justice system. The amendments, among other things, reduce the number of types of courts martial from four to two and permit an accused person, in certain circumstances, to choose the type of court martial that will be convened. The enactment also provides that certain decisions of the panel of a General Court Martial must be unanimous and clarifies the provision that deals with the period of liability with respect to summary trials under the Code of Service Discipline. It also makes a consequential amendment to the Geneva Conventions Act.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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56-57 ELIZABETH II
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CHAPTER 29
An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act
[Assented to 18th June, 2008]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. N-5
NATIONAL DEFENCE ACT
1993, c. 34, s. 91(F)
1. The definition “court martial” in subsection 2(1) of the National Defence Act is replaced by the following:
“court martial”« cour martiale »
“court martial” includes a General Court Martial and a Standing Court Martial; 
1998, c. 35, s. 21
2. Section 69 of the Act is replaced by the following:
When person is liable
69. (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.
Sections 130 and 132
(2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.
1998, c. 35, s. 42
3. Section 162 of the Act is replaced by the following:
Duty to act expeditiously
162. Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
4. Section 163 of the Act is amended by adding the following after subsection (1):
Limitation period
(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.
5. Section 164 of the Act is amended by adding the following after subsection (1):
Limitation period
(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.
1998, c. 35, s. 42
6. Section 165.14 of the Act is repealed.
1998, c. 35, s. 42
7. Subsection 165.19(1) of the Act is replaced by the following:
Duties
165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.
8. The Act is amended by adding the following after section 165.19:
Convening General Court Martial
165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is
(a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;
(b) an offence punishable under section 130 that is punishable by imprisonment for life; or
(c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.
Consent to be tried by Standing Court Martial
(2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.
Withdrawal of consent
(3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.
Convening Standing Court Martial
165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is
(a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or
(b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.
Choice of accused
165.193 (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.
Notification
(2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).
Failure to make choice
(3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.
New choice — as of right
(4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.
New choice — with consent
(5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.
Two or more accused
(6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.
Convening of court martial
(7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.
9. The Act is amended by adding the following after section 166:
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.
1998, c. 35, s. 42
10. The heading before section 169 and sections 169 to 172 of the Act are repealed.
1998, c. 35, s. 42
11. Section 173 of the Act is replaced by the following:
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.
1998, c. 35, s. 42
12. Sections 175 to 178 of the Act are replaced by the following:
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.
1998, c. 35, s. 46
13. Section 187 of the Act is replaced by the following:
Preliminary proceedings
187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.
1998, c. 35, s. 46
14. The heading before section 191 and sections 191 to 193 of the Act are replaced by the following:
Decisions of General Court Martial
Questions of law
191. The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.
Plea of guilty
191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Decision of panel
192. (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.
Decision
(2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.
Disagreement of panel
192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.
Dissolution of court martial
(2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.
Sentence
193. The military judge presiding at a General Court Martial determines the sentence.
1998, c. 35, s. 47
15. Paragraphs 196(2)(a) and (b) of the Act are replaced by the following:
(a) in the case of a General Court Martial, may order that the court martial
(i) continue from the stage at which it was when it was deemed to be adjourned, or
(ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and
(b) in the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced.
1998, c. 35, s. 47
16. Subsection 196.1(1) of the Act is replaced by the following:
Dissolution
196.1 (1) If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.
2007, c. 22, s. 5
17. Paragraph 196.16(2)(a) of the Act is replaced by the following:
(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;
1998, c. 35, s. 50; 2005, c. 22, par. 61(b)(F)
18. The portion of subsection 202.12(1) of the Act before paragraph (a) is replaced by the following:
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
2005, c. 22, s. 49
19. Subsection 202.121(3) of the Act is replaced by the following:
Obligation of court martial
(3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, the inquiry if the court martial determines that it is appropriate.
20. Subsection 227.03(7) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
21. Subsection 227.1(3) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(3) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
22. Subsection 227.12(7) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
1991, c. 43, s. 23(1)
23. Paragraph 238(1)(b) of the Act is replaced by the following:
(b) direct a new trial by court martial on the charge.
1991, c. 43, s. 25
24. (1) Paragraph 239.1(1)(a) of the Act is replaced by the following:
(a) direct a new trial by court martial on that charge; or
1991, c. 43, s. 25
(2) The portion of paragraph 239.1(1)(b) of the Act before subparagraph (i) is replaced by the following:
(b) except if the finding is that of a General Court Martial, enter a finding of guilty with respect to the offence for which, in its opinion, the accused person should have been found guilty but for the illegality and
1991, c. 43, s. 25
25. Section 239.2 of the Act is replaced by the following:
Appeal against decision
239.2 On the hearing of an appeal respecting the legality of a decision referred to in paragraph 230.1(d), the Court Martial Appeal Court may, if it allows the appeal, set aside the decision and direct a new trial by court martial on the charge.
1991, c. 43, s. 26
26. Subsection 240.2(1) of the Act is replaced by the following:
Appeal against finding of unfit or not responsible
240.2 (1) On the hearing of an appeal against a finding of unfit to stand trial or not responsible on account of mental disorder, the Court Martial Appeal Court shall, subject to subsection (2), direct a new trial by court martial if it allows the appeal.
1991, c. 43, s. 26
27. Paragraph 240.3(b) of the Act is replaced by the following:
(b) except in the case of a disposition made by a General Court Martial, remit the matter to the court martial for a rehearing, in whole or in part, in accordance with any directions that the Court considers appropriate; or
REVIEW AND REPORT
Review
28. (1) Within two years after the day on which this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by the committee of either the Senate or the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons or by both Houses of Parliament, as the case may be, for that purpose.
Report
(2) Within one year after the review is undertaken, or within any longer period that the Senate or the House of Commons or both Houses of Parliament may authorize, the committee shall submit a report on the review to Parliament, including a statement of any changes that the committee recommends.
TRANSITIONAL PROVISION
Reference to General Court Martial
29. For the purposes of paragraphs 239.1(1)(b) and 240.3(b) of the National Defence Act, any reference to a General Court Martial is also a reference to a Disciplinary Court Martial.
CONSEQUENTIAL AMENDMENT
R.S., c. G-3
Geneva Conventions Act
30. The definition “court” in section 4 of the Geneva Conventions Act is replaced by the following:
“court”« tribunal »
“court” includes a General Court Martial and a Standing Court Martial convened under the National Defence Act;
COORDINATING AMENDMENTS
Bill C-45
31. (1) If Bill C-45, introduced in the 2nd session of the 39th Parliament and entitled An Act to amend the National Defence Act and to make consequential amendments to other Acts (the “other Act”), receives royal assent, then subsections (2) to (12) apply.
(2) If section 10 of this Act comes into force before section 45 of the other Act, that section 45 is repealed.
(3) If section 10 of this Act comes into force on the same day as section 45 of the other Act, then that section 45 is deemed to have come into force before that section 10.
(4) If section 13 of this Act comes into force before section 50 of the other Act, that section 50 is repealed.
(5) If section 13 of this Act comes into force on the same day as section 50 of the other Act, then that section 50 is deemed to have come into force before that section 13.
(6) If section 14 of this Act comes into force before section 51 of the other Act, that section 51 is repealed.
(7) If section 14 of this Act comes into force on the same day as section 51 of the other Act, then that section 51 is deemed to have come into force before that section 14.
(8) If section 14 of this Act comes into force before section 52 of the other Act, that section 52 is repealed.
(9) If section 14 of this Act comes into force on the same day as section 52 of the other Act, then that section 52 is deemed to have come into force before that section 14.
(10) If section 14 of this Act comes into force before section 53 of the other Act, that section 53 is repealed.
(11) If section 14 of this Act comes into force on the same day as section 53 of the other Act, then that section 53 is deemed to have come into force before that section 14.
(12) On the first day on which both section 62 of the other Act and section 1 of this Act are in force, the portion of subsection 203.5(2) of the National Defence Act before paragraph (a) is replaced by the following:
Panel
(2) In the case of a General Court Martial, the court martial
COMING INTO FORCE
After royal assent — 30 days
32. This Act, other than section 31, comes into force 30 days after the day on which it receives royal assent.
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