C-41
Third Session, Fortieth Parliament,
59-60 Elizabeth II, 2010-2011
HOUSE OF COMMONS OF CANADA
BILL C-41
An Act to amend the National Defence Act and to make consequential amendments to other Acts
Reprinted as amended by the Standing Committee on National Defence as a working copy for the use of the House of Commons at Report Stage and as reported to the House on March 24, 2011
MINISTER OF NATIONAL DEFENCE
90545
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the National Defence Act and to make consequential amendments to other Acts”.
SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
3rd Session, 40th Parliament,
59-60 Elizabeth II, 2010-2011
house of commons of canada
BILL C-41
An Act to amend the National Defence Act and to make consequential amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Strengthening Military Justice in the Defence of Canada Act.
R.S., c. N-5
NATIONAL DEFENCE ACT
2007, c. 5, s. 1
2. (1) The definition “Provost Marshal” in subsection 2(1) of the National Defence Act is repealed.
1998, c. 35, s. 1(4)
(2) The definition “Grievance Board” in subsection 2(1) of the English version of the Act is repealed.
1998, c. 35, s. 1(4)
(3) The definition “military judge” in subsection 2(1) of the Act is replaced by the following:
“military judge”« juge militaire »
“military judge” includes a reserve force military judge;
1998, c. 35, s. 1(4)
(4) The definition “Comité des griefs” in subsection 2(1) of the French version of the Act is replaced by the following:
« Comité des griefs »“Grievances Committee”
« Comité des griefs » Le Comité externe d’examen des griefs militaires prorogé par le paragraphe 29.16(1).
(5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“military police”« police militaire »
“military police” means the officers and non-commissioned members appointed under regulations made for the purposes of section 156;
(6) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
“Grievances Committee”« Comité des griefs »
“Grievances Committee” means the Military Grievances External Review Committee continued by subsection 29.16(1);
1998, c. 35, s. 4
3. (1) Paragraph 12(3)(a) of the Act is replaced by the following:
(a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;
(2) Section 12 of the Act is amended by adding the following after subsection (3):
Retroactive effect
(4) Regulations made under paragraph (3)(a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect
(a) in the case of an inquiry under section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or
(b) in the case of an inquiry under section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.
4. The Act is amended by adding the following after section 18.2:
Canadian Forces Provost Marshal
Appointment
18.3 (1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).
Rank
(2) The Provost Marshal holds a rank that is not less than colonel.
Tenure of office and removal
(3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.
Powers of inquiry committee
(4) An inquiry committee has the same powers, rights and privileges — other than 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.
Reappointment
(5) The Provost Marshal is eligible to be reappointed on the expiry of a first or subsequent term of office.
Duties and functions
18.4 The Provost Marshal’s responsibilities include
(a) investigations assigned to any unit or other element under his or her command;
(b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;
(c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and
(d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.
General supervision
18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).
General instructions or guidelines
(2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.
Specific instructions or guidelines
(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.
Availability to public
(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.
Exception
(5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.
Annual report
18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.
5. Section 29 of the Act is amended by adding the following after subsection (2):
Military judges
(2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.
1998, c. 35, s. 7
6. Section 29.11 of the Act is replaced by the following:
Grievances submitted by military judges
29.101 Despite subsection 29.1(1), a griev- ance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.
Final authority
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall
(a) decide all matters relating to a grievance, including financial matters; and
(b) deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
1998, c. 35, s. 7
7. (1) Subsection 29.12(1) of the Act is replaced by the following:
Referral to Grievances Committee
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, and every grievance submitted by a military judge, to the Grievances Committee 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 Grievances Committee.
1998, c. 35, s. 7
(2) Paragraph 29.12(2)(b) of the English version of the Act is replaced by the following:
(b) any decision made by an authority in respect of the grievance; and
1998, c. 35, s. 7
8. Subsection 29.13(2) of the Act is replaced by the following:
Reasons
(2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if
(a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or
(b) the grievance was submitted by a military judge.
1998, c. 35, s. 7
9. Section 29.14 of the Act is replaced by the following:
Delegation
29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that
(a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and
(b) a grievance submitted by a military judge may not be delegated.
Conflict of interest
(2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.
Report
(2.1) An officer shall regularly report to the Chief of the Defence Staff on the exercise of any powers, duties or functions delegated to him or her under subsection (1).
Subdelegation
(3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).
1998, c. 35, s. 7
10. The heading before section 29.16 of the Act is replaced by the following:
Military Grievances External Review Committee
1998, c. 35, s. 7
11. (1) Subsection 29.16(1) of the Act is replaced by the following:
Grievances Committee
29.16 (1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, 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.
(1.1) Section 29.16 of the Act is amended by adding the following after subsection (2):
Member of the Grievances Committee
(2.1) No officer or non-commissioned member may be appointed as a member of the Grievances Committee and at least 60% of the members must never have been an officer or a non-commissioned member.
(1.2) Subsections 29.16(7) and (8) of the Act are replaced by the following:
Remuneration
(7) Members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.
Travel and living expenses
(8) Members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.
(1.3) The portion of subsection 29.16(9) of the Act before paragraph (a) is replaced by the following:
Status of members
(9) Members are deemed
1998, c. 35, s. 7
(2) Subsection 29.16(10) of the Act is repealed.
1998, c. 35, s. 7
(3) Subsection 29.16(11) of the Act is replaced by the following:
Oath of office
(11) Every member shall, before commenc- ing 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 Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, 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.)
R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)
12. Subsection 30(4) of the Act is replaced by the following:
Reinstatement
(4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.
Deeming provision
(5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.
1998, c. 35, s. 10
13. Subsection 35(1) of the Act is replaced by the following:
Rates and conditions of pay
35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than those mentioned in paragraph 12(3)(a), shall be established by the Treasury Board.
1998, c. 35, s. 20
14. Paragraph 66(1)(b) of the Act is replaced by the following:
(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 either punished in accordance with the sentence or discharged absolutely or on conditions.
15. The Act is amended by adding the following after section 72:
Civil Defences
Rules and principles of civil courts applicable
72.1 All rules and principles that are followed from time to time in the civil courts and 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.
Ignorance of the Law
Ignorance not to constitute excuse
72.2 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.
1998, c. 35, s. 29
16. Section 101.1 of the Act is replaced by the following:
Failure to comply with conditions
101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8, 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.
1998, c. 35, s. 32
17. Subsection 118(1) of the Act is replaced by the following:
Definition of “tribunal”
118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.
1992, c. 16, s. 1
18. Section 137 of the English version of the Act is replaced by the following:
Offence charged, attempt proved
137. (1) If 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 found guilty of the attempt.
Attempt charged, full offence proved
(2) If, 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 found guilty 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.
Conviction a bar
(3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.
1998, c. 35, s. 36; 2001, c. 32, s. 68(F), c. 41, s. 98
19. Sections 140.3 and 140.4 of the Act are repealed.
1998, c. 35, s. 38
20. Subsection 142(2) of the Act is replaced by the following:
Reduction in rank during detention
(2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.
21. The Act is amended by adding the following after section 145:
Civil enforcement of fines
145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.
1995, c. 39, s. 176; 1996, c. 19, s. 83.1
22. (1) Subsection 147.1(1) of the Act is replaced by the following:
Prohibition order
147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of
(a) an offence in the commission of which violence against a person was used, threat- ened or attempted;
(b) an offence 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) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act; or
(d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.
1995, c. 39, s. 176
(2) Subsection 147.1(3) of the Act is replaced by the following:
Application of order
(3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the perform- ance of their duties.
1995, c. 39, s. 176
23. (1) The portion of section 147.2 of the Act before paragraph (a) is replaced by the following:
Requirement to surrender
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer
1995, c. 39, s. 176
(2) Paragraphs 147.2(a) and (b) of the English version of the Act are replaced by the following:
(a) any thing the possession of which is prohibited by the order that is in the possession of the offender 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 offender on the commencement of the order.
1995, c. 39, s. 176
(3) The portion of section 147.2 of the English version of the Act after paragraph (b) is replaced by the following:
The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.
24. Section 148 of the Act and the heading before it are replaced by the following:
Intermittent Sentences
Imprisonment or detention
148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at the times specified in the order; and
(b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.
Application to vary intermittent sentence
(2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying
(a) to their commanding officer, in the case of a sentence imposed by summary trial; or
(b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.
New sentence of imprisonment or detention
(3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.
Hearing into breach of conditions
(4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or
(b) a military judge, in the case of a condition imposed by a court martial.
Consequences of breach
(5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may
(a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or
(b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.
R.S., c. 31 (1st Supp.), s. 47
25. The heading before section 150 and sections 150 and 151 of the Act are repealed.
1998, c. 35, s. 40
26. Paragraph (d) of the definition “infraction désignée” in section 153 of the French version of the Act is replaced by the following:
d) toute infraction d’organisation criminelle punissable aux termes de la présente loi;
27. Section 155 of the Act is amended by adding the following after subsection (2):
Limitations on power of arrest
(2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:
(a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to
(i) establish the person’s identity,
(ii) secure or preserve evidence of or relating to the offence, and
(iii) prevent the continuation or repetition of the offence or the commission of another offence; and
(b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.
1998, c. 35, s. 41
28. (1) The portion of section 156 of the Act before paragraph (a) is replaced by the following:
Powers of military police
156. (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may
(2) Section 156 of the Act is amended by adding the following after subsection (1):
Arrest without warrant — limitations
(2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.
1998, c. 35, s. 42
29. Subsection 158(3) of the Act is replaced by the following:
Duty to receive into service custody
(3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.
1998, c. 35, s. 42
30. Subsection 158.6(2) of the French version of the Act is replaced by the following:
Révision
(2) L’ordonnance de libération, inconditionnelle ou sous condition, rendue par l’officier réviseur peut être révisée par le commandant qui a désigné celui-ci ou, lorsqu’il est lui-même commandant, par l’officier immédiatement supérieur devant lequel il est responsable en matière de discipline.
31. The Act is amended by adding the following before section 159:
Review of directions
158.7 (1) A military judge may, on application by counsel for the Canadian Forces or by a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):
(a) a direction that was reviewed under subsection 158.6(2);
(b) a direction that was made under subsection 158.6(3); and
(c) a direction that was made under this section.
Conditions
(2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.
Further applications
(3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.
1998, c. 35, s. 42
32. Paragraphs 159.2(b) and (c) of the Act are replaced by the following:
(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.
33. The Act is amended by adding the following after section 159.9:
Direction Cancelled
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.
34. Section 161 of the Act is renumbered as subsection 161(1) and is amended by adding the following:
Duty to act expeditiously
(2) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.
2008, c. 29, s. 4
35. Subsection 163(1.1) of the Act is replaced by the following:
Limitation periods
(1.1) A commanding officer may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.
Waiver
(1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).
1998, c. 35, s. 42
36. (1) Paragraph 164(1)(a) of the Act is replaced by the following:
(a) the accused person is an officer below the rank of colonel or a non-commissioned member above the rank of sergeant;
2008, c. 29, s. 5
(2) Subsection 164(1.1) of the Act is replaced by the following:
Limitation periods
(1.1) A superior commander may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.
Waiver
(1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).
Exceptions — military judge and rank
(1.3) Despite paragraph (1)(a), a superior commander may not try a military judge by summary trial and may only try an officer of the rank of lieutenant-colonel by summary trial if the superior commander is of or above the rank of colonel.
1998, c. 35, s. 42
(3) Subsection 164(3) of the Act is repealed.
(4) Section 164 of the Act is amended by adding the following after subsection (4):
Officer cadets
(5) A superior commander who passes sentence on an officer cadet may include, in addition to the punishments described in subsection (4), minor punishments.
1998, c. 35, s. 42
37. Subsection 165(2) of the English version of the Act is replaced by the following:
Meaning of “prefer”
(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 filed with the Court Martial Administrator.
1998, c. 35, s. 42
38. (1) Subsection 165.1(2) of the English version of the Act is replaced by the following:
Tenure of office and removal
(2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than 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.
1998, c. 35, s. 42
(2) Subsection 165.1(2.1) of the Act is replaced by the following:
Powers of inquiry committee
(2.1) An inquiry committee has the same powers, rights and privileges — other than 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.
39. (1) Section 165.12 of the Act is amended by adding the following after subsection (1):
Irregularity, informality or defect
(1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.
1998, c. 35, s. 42
(2) Subsection 165.12(2) of the French version of the Act is replaced by the following:
Retrait de l’accusation
(2) Le directeur des poursuites militaires peut retirer une mise en accusation déjà prononcée; toutefois, le retrait de la mise en accusation après le début du procès en cour martiale est subordonné à l’autorisation de celle-ci.
(3) Section 165.12 of the Act is amended by adding the following after subsection (3):
Effect of not preferring charge
(4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.
40. Section 165.19 of the Act is amended by adding the following after subsection (1):
Summoning of accused person
(1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.
1998, c. 35, s. 42
41. Sections 165.21 and 165.22 of the Act are replaced by the following:
Appointment
165.21 (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.
Oath
(2) Every military judge shall, before commencing the duties of office, take the following oath of office:
I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)
Removal for cause
(3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.
Ceasing to hold office
(4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on reaching the retirement age prescribed in regulations made by the Governor in Council.
Resignation
(5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.
Reserve Force Military Judges
Panel established
165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who
(a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;
(b) has been a military judge;
(c) has presided at a Standing Court Martial or a Special General Court Martial; or
(d) has been a judge advocate at a court martial.
Reserve force military judge
(2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.
Oath
(3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:
I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)
Removal from panel
165.221 (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.
Automatic removal from panel
(2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge reaching the retirement age prescribed in regulations made by the Governor in Council.
Voluntary removal from panel
(3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.
Chief Military Judge
165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.
Training
(2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.
Restriction on activities
165.223 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.
Duties and Immunity of Military Judges
42. The Act is amended by adding the following after section 165.23:
Immunity
165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.
1998, c. 35, s. 42
43. Section 165.24 of the Act is replaced by the following:
Chief Military Judge
165.24 (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.
Rank
(2) The Chief Military Judge holds a rank that is not less than colonel.
1998, c. 35, s. 42
44. Section 165.26 of the Act is replaced by the following:
Delegation
165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.
45. The Act is amended by adding the following after section 165.27:
Deputy Chief Military Judge
165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.
Power, duties and functions
165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.
Rules of practice and procedure
165.3 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:
(a) pre-trial conferences and other prelimi- nary proceedings;
(b) the making of applications under section 158.7;
(c) the bringing of persons before a military judge under section 159;
(d) the scheduling of trials by court martial;
(e) the minutes of proceedings of courts martial and other proceedings;
(f) documents, exhibits or other things connected with any proceeding, including public access to them; and
(g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.
Military Judges Inquiry Committee
Composition of Committee
165.31 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.
Chairperson
(2) The Chief Justice shall appoint one of the judges to act as Chairperson.
Powers of inquiry committee
(3) The inquiry committee 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.
Inquiry required
165.32 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.
Other inquiry
(2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.
Examination and recommendation
(3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.
Notice to military judge
(4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.
Inquiry held in public or private
(5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.
Counsel
(6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.
Recommendation to the Governor in Council
(7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,
(a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of
(i) infirmity,
(ii) having been guilty of misconduct,
(iii) having failed in the due execution of his or her judicial duties, or
(iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or
(b) the military judge does not satisfy the physical and medical fitness standards appli- cable to officers.
Report
(8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.
Military Judges Compensation Committee
Composition of Committee
165.33 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:
(a) one person nominated by the military judges;
(b) one person nominated by the Minister; and
(c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).
Tenure and removal
(2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.
Reappointment
(3) A member is eligible to be reappointed for one further term.
Absence or incapacity
(4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).
Vacancy
(5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.
Quorum
(6) All three members of the compensation committee together constitute a quorum.
Remuneration
(7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.
Mandate
165.34 (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.
Factors to be considered
(2) In conducting its inquiry, the compensation committee shall consider
(a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;
(b) the role of financial security of the judiciary in ensuring judicial independence;
(c) the need to attract outstanding candidates to the judiciary; and
(d) any other objective criteria that the committee considers relevant.
Quadrennial inquiry
(3) The compensation committee shall commence an inquiry on September 1, 2011, and on September 1 of every fourth year after 2011, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.
Postponement
(4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.
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.
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.
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.
46. The Act is amended by adding the following after section 165.37:
Costs payable
165.38 If the military judges are represented at an inquiry of the Military Judges Compensation Committee, the costs of representation shall be paid in the amount and manner, and according to the terms and conditions, prescribed by regulations made by the Governor in Council.
1998, c. 35, s. 42
47. (1) Subsections 167(2) and (3) of the Act are replaced by the following:
Rank of senior member
(2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.
1998, c. 35, s. 42
(2) Subsections 167(5) to (7) of the Act are replaced by the following:
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 the rank of the accused person, with at least one of the non-commissioned members being of or above the rank of warrant officer.
1998, c. 35, s. 42
48. Paragraphs 168(d) and (e) of the Act are replaced by the following:
(d) a member of the military police;
(e) an officer or non-commissioned member who has been a member of the Canadian Forces for less than three years;
1998, c. 35, s. 42
49. Subsection 179(1) of the English version of the Act is replaced by the following:
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.
1998, c. 35, s. 43; 2001, c. 41, s. 101
50. Section 180 of the Act and the heading before it are replaced by the following:
Admission to Courts Martial and Certain Proceedings Before Military Judges
Proceedings public
180. (1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges under section 148, 158.7, 159, 187, 215.2 or 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary
(a) in the interests of public safety or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations, national defence or national security.
Witnesses
(3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be.
Clearing court
(4) For the purpose of any deliberation, a court martial or military judge, as the case may be, may cause the place where the proceedings are being held to be cleared.
51. Section 181 of the Act is replaced by the following:
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.
52. (1) Subsection 182(1) of the Act is replaced by the following:
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.
(2) Subsection 182(2) of the English version of the Act is replaced by the following:
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.
1998, c. 35, s. 45(2)
53. Subsection 184(3) of the Act is replaced by the following:
Power to require personal attendance of witness
(3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military 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.
54. The Act is amended by adding the following after section 194:
Absconding Accused
Accused absconding during court martial
194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.
Continuing or adjourning court martial
(2) A military judge presiding at the court martial of an accused person who absconds may
(a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or
(b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.
Continuing court martial
(3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.
Adverse inference
(4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.
Accused not entitled to reopening
(5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.
Counsel for accused person may continue to act
(6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.
2000, c. 10, s. 1
55. Paragraph (b) of the definition “peace officer” in section 196.11 of the Act is replaced by the following:
(b) an officer or a non-commissioned member of the Canadian Forces who is
(i) a member of the military police, or
(ii) 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.
2000, c. 10, s. 1
56. The portion of subsection 196.12(1) of the Act before paragraph (a) is replaced by the following:
Information for warrant to take bodily substances for forensic DNA analysis
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 military justice to do so and that there are reasonable grounds to believe
2005, c. 22, s. 48
57. Subsection 202.12(1.1) of the Act is replaced by the following:
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.
2005, c. 22, s. 49
58. (1) Paragraph 202.121(7)(c) of the Act is replaced by the following:
(c) that a stay is in the interests of the proper administration of military justice.
2005, c. 22, s. 49
(2) The portion of subsection 202.121(8) of the Act before paragraph (a) is replaced by the following:
Proper administration of military justice
(8) To determine whether a stay of proceedings is in the interests of the proper administration of military justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:
2005, c. 22, s. 49
(3) Paragraph 202.121(8)(b) of the Act is replaced by the following:
(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of military justice;
59. The Act is amended by adding the following after section 202.2:
Procedure at disposition hearing
202.201 (1) A hearing by a court martial under subsection 200(2) or 202.15(1) to make or review a disposition in respect of an accused person shall be held in accordance with this section.
Hearing to be informal
(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.
Interested person may be party
(3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.
Notice of hearing
(4) The court martial shall give notice of the hearing to the parties.
Notice
(5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.
Order excluding public
(6) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.
Right to counsel
(7) The accused person or any other party has the right to be represented by counsel.
Assigning counsel
(8) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.
Right of accused person to be present
(9) Subject to subsection (10), the accused person has the right to be present during the entire hearing.
Removal or absence of accused person
(10) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:
(a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;
(b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or
(c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).
Rights of parties at hearing
(11) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted in writing to the court martial.
Witnesses
(12) A party may not compel the attendance of witnesses, but may request the court martial to do so.
Video links
(13) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.
Determination of mental condition of accused person
(14) 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 subsection 201(1) or 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
(15) 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 harm done to, or loss suffered by, the victim arising from the commission of the offence.
Procedure
(16) 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
(17) 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
(18) 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
(19) 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
(20) 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
(21) 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 (18) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.
Definition of “victim”
(22) In this section, “victim” has the same meaning as in section 203.
2005, c. 22, s. 56
60. (1) The portion of subsection 202.23(2) of the Act before paragraph (a) is replaced by the following:
Arrest without warrant for contravention of disposition
(2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person
2005, c. 22, s. 56
(2) Subsection 202.23(2.1) of the Act is replaced by the following:
Accused person released subject to conditions
(2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may 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.
2005, c. 22, s. 56
(3) The portion of subsection 202.23(2.2) of the English version of the Act before paragraph (a) is replaced by the following:
Continued detention
(2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe
2005, c. 22, s. 58
61. Subsection 202.25(1) of the Act is replaced by the following:
Powers of Review Boards under Criminal Code
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 subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.
Application
(1.1) For the application of subsection (1), a reference to the attorney general of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.
62. The Act is amended by adding the following after section 202.26:
Division 7.1
Sentencing
Interpretation
Definitions
203. The following definitions apply in this Division.
“common-law partner”« conjoint de fait »
“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.
“victim”« victime »
“victim”, in relation to an offence, means
(a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and
(b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1), the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants.
Purposes and Principles of Sentencing by Service Tribunals
Fundamental purposes of sentencing
203.1 (1) The fundamental purposes of sentencing are
(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and
(b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
Objectives
(2) The fundamental purposes shall be achieved by imposing just sanctions that have 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 unlawful conduct;
(d) to deter offenders and other persons from committing offences;
(e) to assist in rehabilitating offenders;
(f) to assist in reintegrating offenders into military service;
(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;
(h) to provide reparations for harm done to victims or to the community; and
(i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.
Fundamental principle of sentencing
203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that
(i) the offender, in committing the offence, abused their rank or other position of trust or authority,
(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,
(iii) the offender, in committing the offence, abused their spouse or common-law partner,
(iv) the offender, in committing the offence, abused a person under the age of 18 years,
(v) the commission of the offence resulted in substantial harm to the conduct of a military operation,
(vi) the offence was committed in a theatre of hostilities,
(vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(viii) the offence was a terrorism offence;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;
(d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and
(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.
Abuse of persons under age of 18
203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
Facts Relevant to the Determination of a Sentence
Disputed facts
203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;
(b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.
Panel
(2) In the case of a General Court Martial, the court martial
(a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
Victim Impact Statement
Duty to consider victim impact statement
203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
Procedure
(2) A victim’s statement must be prepared in the form, and submitted in accordance with the procedures, provided for by regulations made by the Governor in Council.
Presentation of statement
(3) 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 them to read their statement or to present the statement in any other manner that the court martial considers appropriate.
Evidence concerning victim admissible
(4) Whether or not a statement has been prepared and submitted, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.
Inquiry by court martial
203.7 (1) As soon as feasible after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any 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
(2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
Absolute Discharge
Absolute discharge
203.8 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.
Effect of discharge
(2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that
(a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
References to section 730 of Criminal Code
(3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).
Restitution
Restitution order
203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and
(c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.
Enforcing restitution order
203.91 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
203.92 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the offender’s possession and seized at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.
Notice of orders of restitution
203.93 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.
Civil remedy not affected
203.94 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.
Passing of Sentence
Only one sentence to be passed
203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.
1998, c. 35, s. 57
63. Subsection 204(1) of the Act is replaced by the following:
Commencement of term
204. (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the service tribunal pronounces sentence on the offender.
1998, c. 35, s. 60
64. Section 215 of the Act is replaced by the following:
Suspension of execution of punishment
215. (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.
Conditions
(2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:
(a) to keep the peace and be of good behaviour;
(b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in any of paragraphs 215.2(1)(a) to (c); and
(c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.
Other conditions
(3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.
Term if suspended punishment put into execution
(4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the day on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following the pronouncement of the sentence.
Varying conditions
215.1 On application by an offender, a condition imposed under subsection 215(3) may be varied, or another condition substituted for that condition, by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;
(b) a military judge, in the case of a condition imposed by a court martial; or
(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.
Hearing into breach of conditions
215.2 (1) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under section 215 may be made by
(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;
(b) a military judge, in the case of a condition imposed by a court martial; or
(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.
Revocation of suspension or changes to conditions
(2) If a person referred to in any of paragraphs (1)(a) to (c) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may
(a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or
(b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.
Non-appearance of accused person
215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.
1998, c. 35, s. 60
65. Subsections 216(1) and (2) of the Act are replaced by the following:
Definition of “suspending authority”
216. (1) In this section and section 217, “suspending authority” means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.
Suspension of imprisonment or detention
(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.
Notification
(2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.
Committal after suspension
(2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.
66. Subsection 217(1) of the Act is replaced by the following:
Review and remission
217. (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.
67. Section 218 of the Act is repealed.
68. The Act is amended by adding the following after section 226:
Parole Eligibility
Sentence of imprisonment for life
226.1 (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:
(a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligi- bility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or
(e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.
Provisions of Criminal Code apply
(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of impris- onment for life that is imposed under this Act, and for that purpose
(a) a reference in sections 745.2 and 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and
(b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.
Power of court martial to delay parole
226.2 (1) Despite section 120 of the Corrections and Conditional Release Act, if 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 10 years, whichever is less.
Condition
(2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.
Criminal organization offences
(3) Despite section 120 of the Corrections and Conditional Release Act, if 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 10 years, whichever is less.
Power of court martial to delay parole
(4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of impris- onment 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 person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
Objectives
(5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.
69. Section 230 of the Act is amended by striking out “or” at the end of paragraph (f) and by adding the following after paragraph (g):
(h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;
(i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or
(k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).
70. Section 230.1 of the Act is amended by striking out “or” at the end of paragraph (g) and by adding the following after paragraph (h):
(i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;
(j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;
(k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or
(l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).
1998, c. 35, s. 82
71. (1) Subsection 249.18(2) of the Act is replaced by the following:
Tenure of office
(2) The Director of Defence Counsel Serv- ices holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.
Powers of inquiry committee
(2.1) An inquiry committee has the same powers, rights and privileges — other than 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.
1998, c. 35, s. 82
(2) Subsection 249.18(3) of the French version of the Act is replaced by the following:
Nouveau mandat
(3) Le mandat du directeur du service d’avocats de la défense est renouvelable.
1998, c. 35, s. 82
72. Subsection 249.21(1) of the French version of the Act is replaced by the following:
Avocats
249.21 (1) Le directeur du service d’avocats de la défense peut être assisté par des avocats inscrits au barreau d’une province.
73. The Act is amended by adding the following after section 249.21:
Appeal committee
249.211 (1) The Governor in Council may by regulation establish a committee to determine, on the basis of the factors prescribed in regulations made by the Governor in Council, whether legal services should be provided by the Director of Defence Counsel Services to a person who exercises the right to appeal under section 230 or 245.
Protection of committee members
(2) No criminal or civil proceedings lie against a member of the committee for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the committee.
1998, c. 35, s. 82
74. Subsection 249.25(1) of the Act is replaced by the following:
Restitution of property in case of conviction
249.25 (1) A service tribunal that convicts or discharges absolutely a person of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.
75. The Act is amended by adding the following after section 249.26:
Criminal Record
Convictions for certain offences
249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:
(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to
(i) a severe reprimand,
(ii) a reprimand,
(iii) a fine not exceeding basic pay for one month, or
(iv) a minor punishment;
(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.
Criminal Records Act
(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.
1998, c. 35, s. 82
76. (1) The definition “military police” in section 250 of the Act is repealed.
1998, c. 35, s. 82
(2) The definition “plainte pour inconduite” in section 250 of the French version of the Act is replaced by the following:
« plainte pour inconduite »“conduct complaint”
« plainte pour inconduite » Plainte déposée aux termes du paragraphe 250.18(1) contre un policier militaire concernant sa conduite.
1998, c. 35, s. 82
77. Subsection 250.1(11) of the French version of the Act is replaced by the following:
Serment
(11) Avant d’entrer en fonctions, les membres prêtent le serment suivant :
Moi, .........., je jure (ou j’affirme solennellement) que j’exercerai fidèlement et honnêtement les devoirs qui m’incombent en ma qualité de membre de la Commission d’examen des plaintes concernant la police militaire en conformité avec les prescriptions de la Loi sur la défense nationale applicables à celle-ci, ainsi que toutes règles et instructions établies sous son régime, et que je ne révélerai ni ne ferai connaître, sans y avoir été dûment autorisé(e), rien de ce qui parviendra à ma connaissance en raison de mes fonctions. (Dans le cas du serment, ajouter : Ainsi Dieu me soit en aide.)
1998, c. 35, s. 82
78. (1) Subsection 250.18(2) of the French version of the Act is replaced by the following:
Absence de préjudice
(2) La plainte peut être déposée même en l’absence de préjudice pour le plaignant.
(2) Section 250.18 of the Act is amended by adding the following after subsection (2):
No penalty for complaint
(3) A person may not be penalized for exercising the right to make a conduct complaint so long as the complaint is made in good faith.
79. Section 250.19 of the Act is amended by adding the following after subsection (2):
No penalty for complaint
(3) A person may not be penalized for exercising the right to make an interference complaint so long as the complaint is made in good faith.
1998, c. 35, s. 82
80. Subparagraphs 250.21(2)(c)(ii) and (iii) of the French version of the Act are replaced by the following:
(ii) le président, le chef d’état-major de la défense, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un officier ou militaire du rang,
(iii) le président, le sous-ministre, le juge-avocat général et le grand prévôt dans le cas d’une plainte pour ingérence dont fait l’objet un cadre supérieur du ministère.
1998, c. 35, s. 82
81. Section 250.22 of the French version of the Act is replaced by the following:
Avis — plainte pour inconduite
250.22 Dans les meilleurs délais après la réception ou la notification d’une plainte pour inconduite, le grand prévôt avise par écrit la personne qui en fait l’objet de sa teneur, pour autant que cela, à son avis, ne risque pas de nuire à la tenue d’une enquête sous le régime de la présente loi.
1998, c. 35, s. 82
82. Subsection 250.24(2) of the French version of the Act is replaced by the following:
Avis du retrait
(2) Le cas échéant, le président en avise aussitôt, par écrit, le grand prévôt et la personne qui fait l’objet de la plainte.
83. The Act is amended by adding the following after section 250.26:
Deadline for resolving or disposing of complaint
250.261 The Provost Marshal shall resolve or dispose of a conduct complaint — other than a complaint that results in an investigation of an alleged criminal or service offence — within one year after receiving or being notified of it.
1998, c. 35, s. 82
84. (1) Subsection 250.27(1) of the French version of the Act is replaced by the following:
Règlement amiable
250.27 (1) Dès réception ou notification de la plainte pour inconduite, le grand prévôt décide si elle peut être réglée à l’amiable; avec le consentement du plaignant et de la personne qui en fait l’objet, il peut alors tenter de la régler.
1998, c. 35, s. 82
(2) Subsection 250.27(3) of the French version of the Act is replaced by the following:
Déclarations inadmissibles
(3) Les réponses ou déclarations faites, dans le cadre d’une tentative de règlement amiable, par le plaignant ou par la personne qui fait l’objet de la plainte ne peuvent être utilisées devant une juridiction disciplinaire, criminelle, administrative ou civile, sauf si leur auteur les a faites, tout en les sachant fausses, dans l’intention de tromper.
1998, c. 35, s. 82
(3) Subsection 250.27(6) of the French version of the Act is replaced by the following:
Consignation du règlement amiable
(6) Tout règlement amiable doit être consigné en détail, approuvé par écrit par le plaignant et la personne qui fait l’objet de la plainte et notifié par le grand prévôt au président.
1998, c. 35, s. 82
85. Subsection 250.28(3) of the French version of the Act is replaced by the following:
Avis
(3) Le cas échéant, il avise par écrit de sa décision le plaignant, ainsi que, si elle a déjà reçu notification de la plainte en application de l’article 250.22, la personne qui en fait l’objet, en faisant état à la fois des motifs de sa décision et du droit du plaignant de renvoyer sa plainte devant la Commission pour examen.
1998, c. 35, s. 82
86. The portion of section 250.29 of the French version of the Act before paragraph (a) is replaced by the following:
Rapport d’enquête
250.29 Au terme de l’enquête, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport comportant les éléments suivants :
1998, c. 35, s. 82
87. Subsection 250.3(1) of the French version of the Act is replaced by the following:
Rapports provisoires
250.3 (1) Au plus tard soixante jours après la réception ou la notification de la plainte et, par la suite, tous les trente jours, le grand prévôt transmet au plaignant, à la personne qui fait l’objet de la plainte et au président un rapport écrit sur l’état d’avancement de l’affaire.
1998, c. 35, s. 82
88. Subsection 250.35(3) of the French version of the Act is replaced by the following:
Avis
(3) Le cas échéant, il avise par écrit de sa décision le plaignant, la personne qui fait l’objet de la plainte, le chef d’état-major de la défense ou le sous-ministre, selon le cas, le juge-avocat général et le grand prévôt. L’avis fait mention des motifs de sa décision.
1998, c. 35, s. 82
89. Paragraphs 250.36(b) and (c) of the French version of the Act are replaced by the following:
b) le chef d’état-major de la défense, dans le cas où un officier ou militaire du rang fait l’objet de la plainte;
c) le sous-ministre, dans le cas où un cadre supérieur du ministère fait l’objet de la plainte;
1998, c. 35, s. 82
90. Subsection 250.38(3) of the French version of the Act is replaced by the following:
Avis
(3) S’il décide de faire tenir une enquête, il transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.
1998, c. 35, s. 82
91. Subsection 250.4(1) of the French version of the Act is replaced by the following:
Audience
250.4 (1) Le président, s’il décide de convoquer une audience, désigne le ou les membres de la Commission qui la tiendront et transmet un avis écrit motivé de sa décision au plaignant, à la personne qui fait l’objet de la plainte, au ministre, au chef d’état-major de la défense ou au sous-ministre, selon le cas, au juge-avocat général et au grand prévôt.
1998, c. 35, s. 82
92. Subsection 250.43(1) of the French version of the Act is replaced by the following:
Avis de l’audience
250.43 (1) Le plus tôt possible avant le début de l’audience, la Commission signifie au plaignant et à la personne qui fait l’objet de la plainte un avis écrit en précisant les date, heure et lieu.
1998, c. 35, s. 82
93. Section 250.44 of the French version of the Act is replaced by the following:
Droits des intéressés
250.44 Le plaignant, la personne qui fait l’objet de la plainte et toute autre personne qui convainc la Commission qu’elle a un intérêt direct et réel dans celle-ci doivent avoir toute latitude de présenter des éléments de preuve à l’audience, d’y contre-interroger les témoins et d’y faire des observations, en personne ou par l’intermédiaire d’un avocat.
1998, c. 35, s. 82
94. Subsection 250.49(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans le cas où le grand prévôt fait l’objet de la plainte, c’est le chef d’état-major de la défense qui est chargé de la révision.
1998, c. 35, s. 82
95. Section 250.5 of the French version of the Act is replaced by the following:
Révision — plainte pour ingérence
250.5 (1) Sur réception du rapport établi au titre des articles 250.36, 250.39 ou 250.48, la plainte pour ingérence est révisée à la lumière des conclusions et recommandations qu’il contient par le chef d’état-major de la défense, dans le cas où la personne qui en fait l’objet est un officier ou militaire du rang, ou par le sous-ministre, dans le cas où elle est un cadre supérieur du ministère.
Exception
(2) Dans le cas où le chef d’état-major de la défense ou le sous-ministre fait l’objet de la plainte, c’est le ministre qui est chargé de la révision.
1998, c. 35, s. 82
96. Subsection 250.53(2) of the French version of the Act is replaced by the following:
Destinataires
(2) Il en transmet copie au ministre, au sous-ministre, au chef d’état-major de la défense, au juge-avocat général, au grand prévôt, au plaignant, à la personne qui fait l’objet de la plainte ainsi qu’à toute personne qui a convaincu la Commission qu’elle a un intérêt direct et réel dans la plainte.
1998, c. 35, s. 82
97. Section 251.2 of the Act is replaced by the following:
Witness fees and allowances
251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.
98. The heading before section 267 of the Act is replaced by the following:
Limitation or Prescription Periods, Liability and Exemptions
99. Subsection 269(1) of the Act is replaced by the following:
Limitation or prescription period
269. (1) Unless an action or other proceeding is commenced within two years after the day on which the act, neglect or default complained of occurred, no action or other proceeding lies against Her Majesty or any person for
(a) an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority;
(b) any neglect or default in the execution of this Act or any regulations or military or departmental duty or authority; or
(c) an act or any neglect or default that is incidental to an act, neglect or default described in paragraph (a) or (b).
Prosecutions
(1.1) A prosecution in respect of an offence — other than an offence under this Act, the Geneva Conventions Act or the Crimes Against Humanity and War Crimes Act — relating to an act, neglect or default described in subsection (1) may not be commenced after six months from the day on which the act, neglect or default occurred.
R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 56)
100. Section 272 of the Act is replaced by the following:
Arrest of dependants
272. The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.
101. The Act is amended by adding the following after section 273.6:
Independent Review
Review
273.601 (1) The Minister shall cause an independent review of the following provisions, and their operation, to be undertaken:
(a) sections 18.3 to 18.6;
(a.1) sections 29 to 29.28;
(b) Parts III and IV; and
(c) sections 251, 251.2, 256, 270, 272, 273, 273.1 to 273.5 and 302.
Report to Parliament
(2) The Minister shall cause a report of a review to be laid before each House of Parliament within seven years after the day on which this section comes into force, and within every seven-year period after the tabling of a report under this subsection.
Amending legislation
(3) However, if an Act of Parliament amends this Act based on an independent review, the next report shall be tabled within seven years after the day on which the amending Act is assented to.
2001, c. 41, s. 102
102. Subsection 273.63(1) of the French version of the Act is replaced by the following:
Nomination du commissaire et durée du mandat
273.63 (1) Le gouverneur en conseil peut nommer, à titre inamovible pour une période maximale de cinq ans, un juge surnuméraire ou un juge à la retraite d’une juridiction supérieure qu’il charge de remplir les fonctions de commissaire du Centre de la sécurité des télécommunications.
R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 63)
103. Subsection 299(2) of the Act is replaced by the following:
Certificate of Judge Advocate General
(2) A certificate that appears to have been signed by the Judge Advocate General, or by any person whom the Judge Advocate General may appoint for that purpose, attesting that an officer or non-commissioned member was convicted or discharged absolutely under this Act of desertion or absence without leave or that the officer or non-commissioned member was or has been continuously absent without leave for six months or more, and setting out the date of commencement and, if applicable, the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence of the facts attested to in that certificate.
1998, c. 35, s. 90
104. Paragraph 302(d) of the Act is replaced by the following:
(d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improp- erly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a service tribunal, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or
105. The Act is amended by adding the following after section 306:
Applications for employment
307. Every person who uses or authorizes the use of an application form, for or relating to any of the following matters, that contains a question that by its terms requires the applicant to disclose a conviction for an offence referred to in paragraph 249.27(1)(a) or (b) is guilty of an offence and liable on summary conviction to a fine of not more than $500 or to imprisonment for a term of not more than six months, or to both:
(a) employment in any department set out in Schedule I to the Financial Administration Act;
(b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;
(c) enrolment in the Canadian Forces; or
(d) employment in or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
Terminology
106. The English version of the Act is amended by replacing “Grievance Board” with “Grievances Committee” in the following provisions:
(a) sections 29.12 and 29.13;
(b) subsection 29.17(1);
(c) sections 29.18 to 29.28;
(d) subsection 118(1);
(e) section 251.2; and
(f) paragraph 302(d).
Terminology
107. The French version of the Act is amended by replacing “prévôt” with “grand prévôt” in the following provisions:
(a) subsection 227.04(3);
(b) subparagraph 227.05(1)(d)(iii);
(c) subsection 227.07(1);
(d) subsection 227.08(4);
(e) section 227.11;
(f) subsection 227.13(3);
(g) subsections 227.15(4) and (5);
(h) subsection 227.16(3);
(i) subsections 227.18(1) and (2);
(j) subsections 227.19(1) and (2);
(k) section 227.21;
(l) subsection 240.5(3);
(m) subsection 250.21(1) and subparagraph 250.21(2)(c)(i);
(n) sections 250.25 and 250.26;
(o) subsection 250.27(4);
(p) subsection 250.28(1);
(q) subsection 250.31(2);
(r) subsection 250.32(3);
(s) subsections 250.34(2) and (3);
(t) subsection 250.35(1);
(u) paragraph 250.36(e);
(v) paragraph 250.37(1)(d);
(w) subsection 250.38(5);
(x) section 250.39;
(y) section 250.48; and
(z) subsection 250.49(1).
Terminology
108. The French version of the Act is amended by replacing “mise en cause” and “mise en cause par la plainte” with “qui fait l’objet de la plainte” in the following provisions:
(a) section 250.23;
(b) subsection 250.27(5);
(c) subsection 250.3(3);
(d) subsections 250.33(1) and (3);
(e) paragraph 250.37(1)(b) and subsection 250.37(3);
(f) subsection 250.38(4); and
(g) section 250.46.
TRANSITIONAL PROVISIONS
Military judges continuing in office
109. A person who, immediately before the coming into force of this section, held office as a military judge shall continue in office as if the person had been appointed under subsection 165.21(1) of the National Defence Act, as enacted by section 41.
Members of Inquiry Committee continuing in office
110. A person who, immediately before the coming into force of this section, held office as a member of an Inquiry Committee established under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 41, shall continue in office as if the person had been appointed under subsection 165.31(1) of the National Defence Act, as enacted by section 45.
Members of Compensation Committee continuing in office
111. A person who, immediately before the coming into force of this section, held office as a member of a Compensation Committee established under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 41, shall continue in office as if the person had been appointed under subsection 165.33(1) of the National Defence Act, as enacted by section 45.
Inquiry by Inquiry Committee
112. An inquiry under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 41, that, immediately before the coming into force of this section, had not been completed shall be continued as an inquiry under sections 165.31 and 165.32 of the National Defence Act, as enacted by section 45.
Review by Compensation Committee
113. A review under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 41, that, immediately before the coming into force of this section, had not been completed shall be continued as an inquiry under sections 165.33 to 165.37 of the National Defence Act, as enacted by section 45.
Limitation or prescription period
114. The limitation or prescription period set out in subsection 269(1) of the National Defence Act, as enacted by section 99, applies only in respect of an act, neglect or default that occurs after the coming into force of section 99.
CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act
1998, c. 35, s. 106
115. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Canadian Forces Grievance Board
Comité des griefs des Forces canadiennes
116. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Military Grievances External Review Committee
Comité externe d’examen des griefs militaires
1998, c. 35
An Act to amend the National Defence Act and to make consequential amendments to other Acts
117. Section 96 of An Act to amend the National Defence Act and to make consequential amendments to other Acts, chapter 35 of the Statutes of Canada, 1998, is repealed.
1992, c. 20
Corrections and Conditional Release Act
2000, c. 24, s. 38
118. Subsection 120(1) of the Corrections and Conditional Release Act is replaced by the following:
Time when eligible for full parole
120. (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act, to subsection 226.1(2) of the National Defence Act and to any order made under section 226.2 of that Act, and to subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.
References
119. The Act is amended by replacing every reference to section 140.3 of the National Defence Act with a reference to section 226.1 of the National Defence Act wherever it occurs in the following provisions:
(a) the portion of subsection 17(1) after paragraph (d) and before paragraph (e);
(b) the portion of subsection 18(2) before paragraph (a);
(c) the portion of subsection 119(1) before paragraph (a);
(d) subsections 119(1.1) and (1.2);
(e) subsection 120.2(3); and
(f) section 120.3.
References
120. The Act is amended by replacing every reference to section 140.4 of the National Defence Act with a reference to section 226.2 of the National Defence Act wherever it occurs in the following provisions:
(a) subsection 120(2);
(b) subparagraph 120.2(1)(b)(i);
(c) the portion of subsection 121(1) before paragraph (a); and
(d) subparagraph 125(1)(a)(v).
R.S., c. C-46
Criminal Code
Terminology
121. The French version of the Criminal Code is amended by replacing “prévôt” with “grand prévôt” in the following provisions:
(a) section 5 of Form 52 in Part XXVIII; and
(b) section 5 of Form 53 in Part XXVIII.
R.S., c. F-11
Financial Administration Act
1998, c. 35, s. 122
122. Schedule I.1 to the Financial Administration Act is amended by striking out the reference in column I to
Canadian Forces Grievance Board
Comité des griefs des Forces canadiennes
and the corresponding reference in column II to “Minister of National Defence”.
123. Schedule I.1 to the Act is amended by adding, in alphabetical order in column I, a reference to
Military Grievances External Review Committee
Comité externe d’examen des griefs militaires
and a corresponding reference in column II to “Minister of National Defence”.
2003, c. 22, s. 11
124. Schedule IV to the Act is amended by striking out the following:
Canadian Forces Grievance Board
Comité des griefs des Forces canadiennes
125. Schedule IV to the Act is amended by adding the following in alphabetical order:
Military Grievances External Review Committee
Comité externe d’examen des griefs militaires
2006, c. 9, s. 270
126. Part III of Schedule VI to the Act is amended by striking out the reference in column I to
Canadian Forces Grievance Board
Comité des griefs des Forces canadiennes
and the corresponding reference in column II to “Chairperson”.
127. Part III of Schedule VI to the Act is amended by adding a reference to
Military Grievances External Review Committee
Comité externe d’examen des griefs militaires
in alphabetical order in column I and a corresponding reference in column II to “Chairperson”.
2004, c. 15
Public Safety Act, 2002
128. Section 77 of the Public Safety Act, 2002 is repealed.
R.S., c. P-21
Privacy Act
1998, c. 35, s. 123
129. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Canadian Forces Grievance Board
Comité des griefs des Forces canadiennes
130. The schedule to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Military Grievances External Review Committee
Comité externe d’examen des griefs militaires
2004, c. 10
Sex Offender Information Registration Act
Terminology
131. The French version of the Sex Of- fender Information Registration Act is amended by replacing “prévôt” with “grand prévôt” in the following provisions:
(a) subsections 8.2(1) to (7); and
(b) subsection 12(2).
COORDINATING AMENDMENTS
Bill S-2
132. (1) Subsections (2) to (9) apply if Bill S-2, introduced in the 3rd session of the 40th Parliament and entitled the Protecting Victims From Sex Offenders Act (in this section referred to as the “other Act”), receives royal assent.
(2) If paragraph 107(i) of this Act comes into force before section 56 of the other Act, then, on the day on which that section 56 comes into force, the French version of subsection 227.18(1) of the National Defence Act is amended by replacing “prévôt” with “grand prévôt”.
(3) If section 56 of the other Act comes into force on the same day as paragraph 107(i) of this Act, then that section 56 is deemed to have come into force before that paragraph 107(i).
(4) If paragraph 107(j) of this Act comes into force before section 57 of the other Act, then, on the day on which that section 57 comes into force, the French version of subsection 227.19(1) of the National Defence Act is amended by replacing “prévôt” with “grand prévôt”.
(5) If section 57 of the other Act comes into force on the same day as paragraph 107(j) of this Act, then that section 57 is deemed to have come into force before that paragraph 107(j).
(6) If section 121 of this Act comes into force before section 26 of the other Act, then, on the day on which that section 26 comes into force, the French version of section 5 of Form 52 in Part XXVIII of the Criminal Code is amended by replacing “prévôt” with “grand prévôt”.
(7) If section 26 of the other Act comes into force on the same day as section 121 of this Act, then that section 26 is deemed to have come into force before that section 121.
(8) If section 131 of this Act comes into force before subsection 40(3) of the other Act, then, on the day on which that subsection 40(3) comes into force, the French version of the portion of subsection 8.2(6) of the Sex Offender Information Registration Act before paragraph (a) is amended by replacing “prévôt” with “grand prévôt”.
(9) If subsection 40(3) of the other Act comes into force on the same day as section 131 of this Act, then that subsection 40(3) is deemed to have come into force before that section 131.
Bill S-10
133. (1) Subsections (2) and (3) apply if Bill S-10, introduced in the 3rd session of the 40th Parliament and entitled the Penalties for Organized Drug Crime Act (in this section referred to as the “other Act”), receives royal assent.
(2) If subsection 22(1) of this Act comes into force before section 15 of the other Act, then that section 15 is repealed.
(3) If section 15 of the other Act comes into force on the same day as subsection 22(1) of this Act, then that section 15 is deemed to have come into force before that subsection 22(1).
Ending Early Release for Criminals and Increasing Offender Accountability Act
134. (1) Subsections (2) to (9) apply if a Bill entitled the Ending Early Release for Criminals and Increasing Offender Accountability Act (in this section referred to as the “other Act”) is introduced in the 3rd session of the 40th Parliament and receives royal assent.
(2) On the first day on which both section 25 of the other Act and section 19 of this Act are in force, the reference to section 140.4 of the National Defence Act in paragraph 120.1(1)(a) of the Corrections and Conditional Release Act is replaced by a reference to section 226.2 of the National Defence Act.
(3) If section 119 of this Act comes into force before section 25 of the other Act, then, on the day on which that section 25 comes into force, the Corrections and Conditional Release Act is amended by replacing the reference to section 140.3 of the National Defence Act with a reference to section 226.1 of the National Defence Act in the following provisions:
(a) subsection 120.2(3); and
(b) section 120.3.
(4) If section 25 of the other Act comes into force on the same day as section 119 of this Act, then that section 25 is deemed to have come into force before that section 119.
(5) If section 120 of this Act comes into force before section 25 of the other Act, then, on the day on which that section 25 comes into force, subparagraph 120.2(1)(b)(i) of the Corrections and Conditional Release Act is amended by replacing the reference to section 140.4 of the National Defence Act with a reference to section 226.2 of the National Defence Act.
(6) If section 25 of the other Act comes into force on the same day as section 120 of this Act, then that section 25 is deemed to have come into force before that section 120.
(7) If subsection 26(1) of the other Act comes into force before section 19 of this Act, then, on the day on which that section 19 comes into force, the portion of subsection 121(1) of the Corrections and Conditional Release Act before paragraph (a) is amended by replacing the reference to section 140.3 of the National Defence Act with a reference to section 226.1 of the National Defence Act.
(8) If section 19 of this Act comes into force before subsection 26(1) of the other Act, then, on the day on which that subsection 26(1) comes into force, the portion of subsection 121(1) of the Corrections and Conditional Release Act before paragraph (a) is amended by replacing the references to sections 140.3 and 140.4 of the National Defence Act with references to sections 226.1 and 226.2 of the National Defence Act, respectively.
(9) If subsection 26(1) of the other Act comes into force on the same day as section 19 of this Act, then that subsection 26(1) is deemed to have come into force before that section 19 and subsection (7) applies as a consequence.
COMING INTO FORCE
Order in council
135. (1) Subject to subsection (2), the provisions of this Act, other than subsections 2(2) to (4) and (6) and sections 3, 10, 11, 41 to 45, 106, 109 to 113, 115, 116, 122 to 127, 129, 130 and 132 to 134, come into force on a day or days to be fixed by order of the Governor in Council.
Order in council
(2) Sections 19, 68 and 118 to 120 come into force on a day to be fixed by order of the Governor in Council.
Coming into force
(3) Sections 101 and 117 come into force two years after the day on which this Act receives royal assent.
Published under authority of the Speaker of the House of Commons