C-71
Second Session, Forty-first Parliament,
62-63-64 Elizabeth II, 2013-2014-2015
HOUSE OF COMMONS OF CANADA
BILL C-71
An Act to amend the National Defence Act and the Criminal Code
first reading, June 15, 2015
MINISTER OF NATIONAL DEFENCE
90772
SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system.
It adds a new Division entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have rights to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.
It amends Part III of that Act to, among other things,
(a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary trials;
(b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d) make testimonial aids more accessible to vulnerable witnesses;
(e) allow witnesses to testify using a pseudonym in appropriate cases;
(f) make publication bans for victims under the age of 18 mandatory on application;
(g) require courts martial to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor in certain circumstances;
(h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i) provide for different ways of presenting victim impact statements;
(j) allow for military impact statements and community impact statements to be considered for all service offences;
(k) provide for the creation, in regulations, of disciplinary infractions that can be tried by summary trial;
(l) provide for a scale of sanctions and principles applicable to sanctions in respect of disciplinary infractions;
(m) provide for a six-month limitation period in respect of summary trials; and
(n) provide superior commanders, commanding officers and delegated officers with jurisdiction to try a person charged with having committed a disciplinary infraction by summary trial if the person is at least one rank below the officer presiding at the summary trial.
The enactment also amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.
Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
2nd Session, 41st Parliament,
62-63-64 Elizabeth II, 2013-2014-2015
house of commons of canada
BILL C-71
An Act to amend the National Defence Act and the Criminal Code
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
ALTERNATIVE TITLE
Alternative title
1. This Act may be cited as the Victims Rights in the Military Justice System Act.
R.S., c. N-5
NATIONAL DEFENCE ACT
2. The heading before section 2 of the French version of the National Defence Act is replaced by the following:
DÉFINITIONS ET INTERPRÉTATION
3. (1) The definition “summary trial” in subsection 2(1) of the Act is replaced by the following:
“summary trial”« procès sommaire »
“summary trial” means a trial conducted by or under the authority of a commanding officer, or a trial conducted by a superior commander, under section 163;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“disciplinary infraction”« manquement disciplinaire »
“disciplinary infraction” means a disciplinary infraction created by regulations made by the Governor in Council;
“military justice”« justice militaire »
“military justice” means all aspects of the application of the Code of Service Discipline;
“military justice system participant”« personne associée au système de justice militaire »
“military justice system participant” means a person who plays a role in the administration of military justice, including
(a) the Minister,
(b) the Judge Advocate General,
(c) an officer or non-commissioned member who acts under the supervision of the Judge Advocate General,
(d) a prosecutor and counsel for an accused person,
(e) a military judge,
(f) a superior commander, a commanding officer and a delegated officer, as defined in section 162.3,
(g) a custody review officer, as defined in section 153,
(h) an officer or non-commissioned member who has been appointed to be a member of a panel of General Court Martial and a member of such a panel,
(i) an officer or non-commissioned member who is appointed by a commanding officer for the purpose of supporting a court martial,
(j) an officer or non-commissioned member who is authorized to lay or refer a charge,
(k) a prospective witness, a witness who has been summoned to appear and a witness who has testified,
(l) a peace officer within the meaning of paragraph (g) of the definition “peace officer” in section 2 of the Criminal Code,
(m) a commanding officer of a service prison or detention barrack and a person who acts under the supervision of such a commanding officer, and
(n) any person who acts under the supervision of the Chief Military Judge or the Court Martial Administrator;
“victim”« victime »
“victim” means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person.
(3) Section 2 of the Act is amended by adding the following after subsection (1):
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III:
(a) if the victim is dead or is incapable, other than for operational reasons, of acting on their own behalf,
(i) the victim’s spouse or the individual who was at the time of the victim’s death their spouse,
(ii) the individual who is or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year,
(iii) a relative or dependant of the victim,
(iv) an individual who has in law or fact custody, or is responsible for the care or support, of the victim, and
(v) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim; and
(b) if, for operational reasons, the victim is unable to act on their own behalf and has requested the appointment of a member of the Canadian Forces to act on their behalf, a member appointed by the Chief of the Defence Staff or any officer authorized by the Chief of Defence Staff.
Exception — not a victim
(1.2) An individual is not a victim in relation to a service offence, or entitled to exercise a victim’s rights under Division 1.1 of Part III, if the individual is charged with the offence, found guilty of the offence or found unfit to stand trial or not responsible on account of mental disorder in respect of the offence.
4. The Act is amended by adding the following after the heading of Part III:
Purpose
Purpose
55. The purpose of the Code of Service Discipline is to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
5. The Act is amended by adding the following after section 71:
Division 1.1
Declaration of Victims Rights
Interpretation
Definition of “military justice system”
71.01 For the purpose of this Division, “military justice system” means
(a) the investigation of service offences, the processes for the laying and referral of charges of service offences and their prosecution;
(b) the process for the carrying out of punishments imposed by courts martial, except in respect of service prisoners and service convicts who have been committed to a penitentiary or civil prison; and
(c) the proceedings of courts martial and Review Boards, as defined in section 197, in respect of accused persons who are found unfit to stand trial or not responsible on account of mental disorder.
Rights
Information
General information
71.02 Every victim has the right, on request, to information about
(a) the military justice system and the role of victims in it;
(b) the services and programs available to them as a victim; and
(c) their right to file a complaint for an infringement or denial of any of their rights under this Division.
Investigation and proceedings
71.03 Every victim has the right, on request, to information about
(a) the status and outcome of the investigation into the service offence; and
(b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome.
Information about offender or accused
71.04 Every victim has the right, on request, to information about
(a) the release of the offender from a service prison or detention barrack;
(b) hearings held for the purpose of making dispositions under any of sections 201, 202 and 202.16 and the dispositions made at those hearings; and
(c) hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.
Protection
Security
71.05 Every victim has the right to have their security considered by the appropriate author­ities in the military justice system.
Protection from intimidation and retaliation
71.06 Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the military justice system to protect the victim from intimidation and retaliation.
Privacy
71.07 Every victim has the right to have their privacy considered by the appropriate author­ities in the military justice system.
Identity protection
71.08 Every victim has the right to request that their identity be protected if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence.
Testimonial aids
71.09 Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the service offence.
Participation
Views to be considered
71.1 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the military justice system that affect the victim’s rights under this Division and to have those views considered.
Victim impact statement
71.11 Every victim has the right to present a victim impact statement to the appropriate authorities in the military justice system and to have it considered.
Restitution
Restitution order
71.12 Every victim has the right to have the court martial consider making a restitution order against the offender.
Enforcement
71.13 Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.
General Provisions
Application
71.14 (1) This Division applies in respect of a victim of a service offence in their interactions with the military justice system
(a) while the offence is being investigated or prosecuted or the charge is being referred;
(b) while the offender is serving a punishment imposed by a court martial in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a civil prison or penitentiary; and
(c) while the accused person is, in relation to the offence, under the jurisdiction of a court martial or a Review Board, as defined in section 197, if they are found unfit to stand trial or not responsible on account of mental disorder.
Reporting of offence
(2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the military justice system, the investigation of the offence is deemed to begin at the time of the reporting.
Exercise of rights
71.15 (1) The rights of victims under this Division are to be exercised through the mechanisms provided by law.
Connection to Canada
(2) A victim is entitled to exercise their rights under this Division only if
(a) they are present in Canada; or
(b) they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Victim’s liaison officer
71.16 (1) Unless he or she is of the opinion that it is not possible to do so for operational reasons, a commanding officer shall, at the request of the victim, appoint an officer or non-commissioned member as a liaison officer to assist the victim as provided for in subsection (4). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim as their liaison officer.
Absence or incapacity
(2) In the event of the absence or incapacity of the victim’s liaison officer, a commanding officer shall appoint another officer or non-commissioned member to replace the liaison officer during that absence or incapacity, unless it is not possible to do so for operational reasons.
Appointments
(3) Appointments under subsection (1) or (2) are to be made in accordance with regulations made by the Governor in Council.
Role of victim’s liaison officer
(4) Assistance by a victim’s liaison officer consists of
(a) explaining to the victim the manner in which service offences are charged, dealt with and tried under the Code of Service Discipline; and
(b) obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under this Division.
Interpretation of this Division
71.17 This Division is to be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to
(a) interfere with the proper administration of military justice, including
(i) by causing interference with investigative discretion or by causing excessive delay in, compromising or hindering the investigation of any service offence,
(ii) by causing interference with charge laying discretion, or charge referral discretion, in respect of any service offence, or by causing excessive delay in, compromising or hindering the laying or referral of a charge in respect of any service offence, and
(iii) by causing interference with prosecutorial discretion or by causing excessive delay in, compromising or hindering the prosecution of any service offence;
(b) interfere with ministerial discretion in respect of any service offence;
(c) interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community;
(d) endanger the life or safety of any individual; or
(e) cause injury to international relations, national defence or national security.
Interpretation of other Acts, regulations, etc.
71.18 To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Division comes into force is to be construed and applied in a manner that is compatible with the rights provided for under this Division.
Primacy in event of inconsistency
71.19 (1) If, after the application of sections 71.17 and 71.18, there is any inconsistency between any provision of this Division and any provision of any Act, order, rule or regulation referred to in section 71.18, the provision of this Division prevails to the extent of the inconsistency.
Exception — Acts, regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and in respect of any orders, rules and regulations made under any of those Acts.
No adverse inference
71.2 No adverse inference is to be drawn against a person who is charged with a service offence from the fact that an individual has been identified as a victim in relation to the service offence.
Entering or remaining in Canada
71.21 Nothing in this Division is to be construed so as to permit any individual to
(a) enter Canada or remain in Canada beyond the end of the period for which they are authorized to so remain;
(b) delay any removal proceedings or prevent the enforcement of any removal order; or
(c) delay any extradition proceedings or prevent the extradition of any person to or from Canada.
Remedies
Complaint
71.22 (1) Every victim who is of the opinion that any of their rights under this Division have been infringed or denied by an authority within the military justice system has the right to file a complaint in accordance with regulations made by the Governor in Council.
Complaints mechanism
(2) Regulations made by the Governor in Council may, among other things, provide for
(a) the review of complaints involving alleged infringements or denials of rights under this Division;
(b) the power to make recommendations to remedy such infringements and denials; and
(c) the obligation to notify victims of the result of those reviews and of any recommendations that were made.
Status
71.23 Nothing in this Division is to be construed as granting to, or removing from, any victim, any individual acting on behalf of a victim or any victim’s liaison officer the status of a party, intervenor or observer in any proceedings.
No cause of action
71.24 No cause of action or right to damages arises from an infringement or denial of a right under this Division. For greater certainty, nothing in this section is to be construed as affecting any other cause of action or right to damages.
No appeal
71.25 No appeal lies from any decision or order solely on the grounds that a right under this Division has been infringed or denied.
6. The Act is amended by adding the following after section 147.5:
Order to Abstain from Communicating
If injury or damage feared
147.6 (1) An information may, in accord­ance with regulations made by the Governor in Council, be laid before a military judge by or on behalf of any victim who fears on reasonable grounds that a person who is subject to the Code of Service Discipline will cause physical or emotional harm to the victim, to the victim’s spouse, to a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year, or to the victim’s child or will cause damage to the victim’s property.
Duty of judge
(2) The military judge who receives the information shall cause the parties to appear before him or her, either in person or otherwise.
Order
(3) The military judge may, if satisfied by the evidence that there are reasonable grounds for the victim’s fears, order that the person who is subject to the Code of Service Discipline and who is referred to in the information
(a) abstain from communicating, directly or indirectly, with any of the following individ­uals who are specified in the order:
(i) the victim,
(ii) the victim’s spouse,
(iii) a person who is cohabiting with the victim in a conjugal relationship, having so cohabited for a period of at least one year,
(iv) the victim’s child;
(b) refrain from going to any place specified in the order; or
(c) comply with any other reasonable condition specified in the order that the judge considers necessary.
Absence of military judge
(4) If, for operational reasons, no military judge is available, the information may be laid before a commanding officer and, if it is so laid, that commanding officer has all the powers of a military judge that are set out in subsection (3).
Review
(5) Every decision of a commanding officer to make or not make an order under subsection (3) must be reviewed as soon as feasible by a military judge. The military judge may, at the conclusion of the review, amend any order that was made and, if none was made, make any order under that subsection.
1998, c. 35, s. 42
7. Paragraph 158(1)(f) of the Act is replaced by the following:
(f) the necessity to ensure the safety and security of the person under arrest, any victim of the offence, or any other person.
8. (1) Section 158.6 of the Act is amended by adding the following after subsection (1):
Consideration of victim’s safety and security
(1.1) If the custody review officer directs that the person be released, with or without conditions, he or she shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.
Copy to victim
(1.2) The custody review officer shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
1998, c. 35, s. 42
(2) Subsection 158.6(3) of the Act is replaced by the following:
Powers
(3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction that a custody review officer may make under subsection (1). If he or she makes a direction, subsections (1.1) and (1.2) apply with any modifications that the circumstances require.
9. The Act is amended by adding the following after section 158.6:
Direction — no communication
158.61 A custody review officer who directs that a person be retained in custody may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the officer considers necessary.
10. The Act is amended by adding the following after section 159.3:
Direction — no communication
159.31 A military judge who directs that a person be retained in custody may also direct that the person abstain from communicating, directly or indirectly, with any victim, witness or other person specified in the direction, except in accordance with any conditions specified in the direction that the military judge considers necessary.
11. Section 159.7 of the Act is renumbered as subsection 159.7(1) and is amended by adding the following:
Consideration of victim’s safety and security
(2) If the military judge directs that a person be released, with or without conditions, he or she shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.
Copy to victim
(3) The military judge shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.
1998, c. 35, s. 42
12. Sections 160 and 161 of the Act are replaced by the following:
Definition of “commanding officer”
160. In this Division, “commanding officer”, in respect of a person charged with having committed a service offence or a disciplinary infraction, means the commanding officer of the person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the person.
Laying of Charge
Laying of charge
161. (1) Proceedings against a person who is alleged to have committed a service offence or a disciplinary infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.
Duty to act expeditiously
(2) A charge must be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.
1998, c. 35, s. 42
13. The heading before section 162.1 and sections 162.1 and 162.2 of the Act are repealed.
1998, c. 35, s. 42
14. Sections 162.3 to 164.2 of the Act are replaced by the following:
Definitions
162.3 The following definitions apply in this Division.
“commanding officer”« commandant »
“commanding officer”, in respect of a person charged with having committed a disciplinary infraction, means an officer who is a commanding officer as defined in section 160.
“delegated officer”« officier délégué »
“delegated officer” means an officer to whom a commanding officer has, under section 162.93, delegated powers to try a person by summary trial.
“superior commander”« commandant supérieur »
“superior commander” means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander.
Disciplinary Infractions
Summary trial
162.4 Disciplinary infractions may only be tried by summary trial in accordance with this Division.
Not offence
162.5 A disciplinary infraction is not an offence under this Act and does not constitute an offence for the purposes of the Criminal Records Act.
Prior trial — offence
162.6 (1) If a person is tried in respect of an offence, the person may not be tried in respect of a disciplinary infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, civil court or court of a foreign state.
Prior trial — disciplinary infraction
(2) If a person is tried in respect of a disciplinary infraction, the person may be tried in respect of an offence arising from the same facts, regardless of whether the person was found guilty or not guilty of the disciplinary infraction.
Answer not receivable
(3) No answer given or statement made by a person at their summary trial may be used or receivable against them in any disciplinary, criminal or civil proceeding, other than at a hearing or proceeding in respect of an allegation that they gave the answer or made the statement knowing it to be false.
Scale of sanctions
162.7 The following sanctions may be imposed in respect of a disciplinary infraction and each of those sanctions is a sanction less than every sanction preceding it:
(a) reduction in rank;
(b) severe reprimand;
(c) reprimand;
(d) deprivation of pay and allowances for not more than 18 days; and
(e) minor sanctions prescribed in regulations made by the Governor in Council.
Reduction in rank
162.8 (1) The sanction of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.
Restrictions
(2) The sanction of reduction in rank is not to
(a) involve reduction to a rank lower than that to which under regulations the person who has committed a disciplinary infraction can be reduced; and
(b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.
Fundamental purpose of imposing sanctions
162.9 (1) The fundamental purpose of imposing sanctions is to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale.
Objectives
(2) That fundamental purpose is to be achieved through 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 indisciplined conduct;
(d) to deter persons from committing disciplinary infractions;
(e) to assist in rehabilitating persons who have committed disciplinary infractions;
(f) to promote a sense of responsibility in persons who have committed disciplinary infractions.
Fundamental principle
162.91 Sanctions must be proportionate to the gravity of the disciplinary infraction and the degree of responsibility of the person who committed it.
Other principles
162.92 A service tribunal that imposes a sanction shall also take into consideration the following principles:
(a) a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the disciplinary infraction or the person who committed it, and aggravating circumstances include, but are not restricted to, evidence establishing that
(i) the person, in committing the discipli­nary infraction, abused their rank or other position of trust or authority,
(ii) the disciplinary infraction 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 on any other similar factor, or
(iii) the commission of the disciplinary infraction resulted in harm to the conduct of a military operation or any military training;
(b) a sanction should be similar to sanctions imposed on persons for similar disciplinary infractions committed in similar circumstances;
(c) a sanction should be the least severe sanction required to maintain discipline, efficiency and morale; and
(d) any indirect consequences of the finding of guilty, or the sanction, should be taken into consideration.
Summary Trials
Delegation
162.93 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that he or she considers appropriate, delegate his or her powers to try a person by summary trial to any officer under the commanding officer’s command.
Decision regarding who is to preside
162.94 A commanding officer to whom a charge alleging the commission of a disciplinary infraction is referred under section 161.1 shall, taking into account the conditions set out in section 163,
(a) try the person by summary trial;
(b) not proceed with the charge if it should not be proceeded with in his or her opinion; or
(c) refer the charge, in accordance with regulations made by the Governor in Council, to another commanding officer or to a superior commander or delegated officer.
Jurisdiction
163. (1) A superior commander, a commanding officer or a delegated officer may, by summary trial, try a person charged with having committed a disciplinary infraction if all of the following conditions are satisfied:
(a) the person is an officer or non-commissioned member who is at least one rank below the rank of the superior commander, commanding officer or delegated officer;
(b) having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate;
(c) there are no reasonable grounds to believe that the person is unfit to stand trial or was suffering from a mental disorder that at the time of the commission of the alleged disciplinary infraction rendered the person incapable of appreciating the nature and quality of the act or omission that gave rise to the charge or of knowing that the act or omission was wrong;
(d) having regard to the interests of discipline, it would be appropriate to try the person.
Prohibition on presiding
(2) Unless it is not practical, having regard to all the circumstances, for any other superior commander, commanding officer or delegated officer to conduct the summary trial, a superior commander, commanding officer or delegated officer may not preside at the summary trial of the person if he or she
(a) carried out or directly supervised the investigation of the disciplinary infraction;
(b) issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the disciplinary infraction; or
(c) laid the charge or caused it to be laid.
Sanctions imposed by superior commander
163.1 (1) If a superior commander finds a person guilty of a disciplinary infraction, he or she may impose one or more of the sanctions referred to in section 162.7.
Sanctions imposed by commanding officer
(2) If a commanding officer finds a person guilty of a disciplinary infraction, he or she may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e).
Sanctions imposed by delegated officer
(3) If a delegated officer finds a person guilty of a disciplinary infraction, he or she may impose one or more of the following sanctions:
(a) deprivation of pay and allowances for seven days or less;
(b) minor sanctions referred to in paragraph 162.7(e).
Decision after referral
163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.94(c) or under this section shall, taking into account the conditions set out in section 163,
(a) try the person by summary trial;
(b) not proceed with the charge if it should not be proceeded with in his or her opinion; or
(c) refer the charge, in accordance with regulations made by the Governor in Council, to a superior commander, a commanding officer or a delegated officer.
Subsequent summary trial proceedings not precluded
163.3 A decision that a charge should not proceed by summary trial does not preclude, subject to section 163.4, proceeding with the charge by summary trial at any subsequent time.
Limitation period
163.4 No person may be tried by summary trial unless the summary trial commences within six months after the day on which the disciplinary infraction is alleged to have been committed.
Division 5.1
Determinations in Respect of Service Offence Charges
Definition of “referral authority”
164. In this Division, “referral authority” means an officer who is authorized by regulations made by the Governor in Council to refer charges in respect of service offences to the Director of Military Prosecutions.
Duty of commanding officer
164.1 A commanding officer to whom a charge alleging the commission of a service offence is referred under section 161.1 shall
(a) apply to a referral authority, in accord­ance with regulations made by the Governor in Council, for disposal of the charge; or
(b) not proceed with the charge if it should not be proceeded with in his or her opinion.
Duty of referral authority
164.2 A referral authority to whom an application is made under paragraph 164.1(a) shall
(a) refer the charge, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions; or
(b) not proceed with the charge if it should not be proceeded with in his or her opinion.
Reasons for not proceeding
164.3 (1) A commanding officer or referral authority who does not proceed with a charge in respect of a service offence shall communicate, in writing, the decision and reasons for it to the next superior officer to whom the commanding officer or referral authority is responsible in matters of discipline, to the officer or non-commissioned member who laid the charge and to the Judge Advocate General.
Application to referral authority
(2) If a commanding officer does not proceed with a charge in respect of a service offence, the officer or non-commissioned member who laid the charge may, in circumstances prescribed by the Governor in Council in regulations and in accordance with regulations made by the Governor in Council, apply to a referral authority for disposal of the charge.
Referral to Director of Military Prosecutions
(3) If a referral authority does not proceed with a charge in respect of a service offence, the officer or non-commissioned member who laid the charge may, in circumstances prescribed by the Governor in Council in regulations and in accordance with regulations made by the Governor in Council, refer the charge to the Director of Military Prosecutions.
Recommendations
164.4 In applying for the disposal of a charge under paragraph 164.1(a) or subsection 164.3(2), or in referring a charge under paragraph 164.2(a) or subsection 164.3(3), the commanding officer, the referral authority or the officer or non-commissioned member who laid the charge, as the case may be, may make any recommendations that he or she considers appropriate.
1998, c. 35, s. 42
15. Section 165.13 of the Act is replaced by the following:
Reasons for not proceeding
165.13 If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate, in writing, the decision and the reasons for it to the officer who referred the charge to him or her, and to the commanding officer of the accused person.
1998, c. 35, ss. 43(1)(E) and (2); 2001, c. 41, s. 101
16. 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) Unless this Act provides otherwise, court martial proceedings, and any proceedings before a military judge under any of sections 147.6, 159, 187 and 248.81 shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial, may, on application of the prosecutor or a witness or on his or her own motion, order that the public be excluded during the whole or any part of the proceedings, if the 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.
Factors to be considered
(3) In determining whether making an order under subsection (2) is in the interest of the proper administration of military justice, the military judge shall consider
(a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;
(d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of military justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the order are available in the circumstances;
(g) the salutary and deleterious effects of the order; and
(h) any other factor that the military judge considers relevant.
No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Reasons to be stated
(5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.
Witnesses
(6) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the military judge.
Clearing court
(7) For the purpose of any deliberation, a military judge may cause the place where the proceedings are being held to be cleared.
Definition of “record”
180.01 For the purposes of sections 180.02 to 180.08 and 303, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social serv­ices records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.
Production of record to accused
180.02 (1) Except in accordance with sections 180.03 to 180.08, no record relating to a complainant or a witness shall be produced to an accused person in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code;
(b) any offence under the Criminal Code, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it had occurred on or after that day.
Application of provisions
(2) Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record that is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
Duty of prosecutor to give notice
(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that the record is in the prosecutor’s possession, but, in doing so, the prosecutor shall not disclose the record’s contents.
Application for production
180.03 (1) An accused person who seeks the production of a record may make an application for its production to a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.
Form and content of application
(2) The application must be made in writing and set out
(a) particulars identifying the record that the accused person seeks to have produced and the name of the person who has possession or control of the record; and
(b) the grounds on which the accused person relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.
Insufficient grounds
(3) Any one or more of the following assertions by the accused person are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a) the record exists;
(b) the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c) the record relates to the incident that is the subject matter of the proceedings;
(d) the record may disclose a prior inconsistent statement of the complainant or witness;
(e) the record may relate to the credibility of the complainant or witness;
(f) the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) the record may reveal allegations of sexual abuse of the complainant by a person other than the accused person;
(h) the record relates to the sexual activity of the complainant with any person, including the accused person;
(i) the record relates to the presence or absence of a recent complaint;
(j) the record relates to the complainant’s sexual reputation;
(k) the record was made close in time to a complaint or to the activity that forms the subject matter of the charge against the accused person.
Service of application
(4) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused person, the record relates, at least 14 days before the day on which the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice.
Service on other persons
(5) The military judge may, at any time, order that the application be served on any person to whom he or she considers the record may relate.
Hearing in private
180.04 (1) The military judge shall hold a hearing in private to determine whether to order the person who has possession or control of the record to produce it to the military judge for review.
Persons who may appear at hearing
(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.
Right to counsel
(3) The military judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.
Costs
(4) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.
Order to produce record for review
180.05 (1) The military judge may order the person who has possession or control of the record to produce the record or part of the record to the military judge for review if, after the hearing, the military judge is satisfied that
(a) the application was made in accordance with subsections 180.03(2) to (5);
(b) the accused person has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
(c) the production of the record is necessary in the interests of military justice.
Factors to be considered
(2) In determining whether to order the production of the record or part of the record for review, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the military judge shall take the following factors into account:
(a) the extent to which the record is necessary for the accused person to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f) society’s interest in encouraging the reporting of sexual offences;
(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
Review of record by military judge
180.06 (1) If the military judge has ordered the production of the record or part of the record for review, the military judge shall review it in the absence of the parties to determine whether the record or part of the record should be produced to the accused person.
Hearing in private
(2) The military judge may hold a hearing in private if he or she considers that it will assist in making the determination.
Provisions re hearing
(3) Subsections 180.04(2) to (4) apply in the case of a hearing held under subsection (2).
Order to produce
180.07 (1) If the military judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and that its production is necessary in the interests of military justice, he or she may order that the record or part of the record that is likely relevant be produced to the accused person, subject to any conditions that may be imposed under subsection (3).
Factors to be considered
(2) In determining whether to order the production of the record or part of the record to the accused person, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, the military judge shall take the factors specified in paragraphs 180.05(2)(a) to (h) into account.
Conditions on production
(3) If the military judge orders the production of the record or part of the record to the accused person, he or she may impose conditions on the production to protect the interests of military justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including the following conditions:
(a) the record is to be edited as directed by the military judge;
(b) a copy of the record, rather than the original, is to be produced;
(c) the accused person and counsel for the accused person are not to disclose the contents of the record to any other person, except with the approval of the military judge;
(d) the record is to be viewed only at a location specified by the military judge;
(e) no copies of the record are to be made or restrictions are to be imposed on the number of copies of the record that may be made; and
(f) information regarding any person named in the record, such as their address, telephone number and place of employment, is to be severed from the record.
Copy to prosecutor
(4) If the military judge orders the production of the record or part of the record to the accused person, he or she shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the military judge determines that it is not in the interests of military justice to do so.
Record not used in other proceedings
(5) The record or part of the record that is produced to the accused person under an order made under subsection (1) must not be used in any other disciplinary, criminal, civil or administrative proceedings.
Retention of record by court
(6) If the military judge refuses to order the production of the record or part of the record to the accused person, the record or part of the record must, unless the military judge orders otherwise, be kept by the military judge in a sealed package until the later of the expiry of the time for any appeal and the completion of any appeal in the proceedings against the accused person, at which time the record or part of the record must be returned to the person lawfully entitled to possession or control of it.
Reasons for decision
180.08 The military judge before whom the accused person is being tried shall provide reasons in writing for ordering or not ordering the production of the record or part of the record under subsection 180.05(1) or 180.07(1).
17. The Act is amended by adding the following after section 183:
Support person — witnesses under 18 or with disability
183.1 (1) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial, shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.
Other witnesses
(2) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’s choice be permitted to be present and to be close to the witness while the witness testifies, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the military judge shall consider
(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused person;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(g) any other factor that the military judge considers relevant.
Witness not to be support person
(4) The military judge shall not permit a witness to be a support person unless the military judge is of the opinion that doing so is necessary for the proper administration of military justice.
No communication while testifying
(5) The military judge may order that the support person and the witness not communicate with each other while the witness testifies.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Testimony outside courtroom — witnesses under 18 or with disability
183.2 (1) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.
Other witnesses
(2) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the military judge shall consider
(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused person;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the identity of a peace officer, as defined in section 2 of the Criminal Code, who has acted, is acting or will be acting in an undercover capacity or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(g) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(h) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(i) any other factor that the military judge considers relevant.
Same procedure for determination
(4) If the military judge is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of the witness, the military judge shall order that the witness testify in accordance with that subsection.
Conditions of exclusion
(5) A witness shall not testify outside the courtroom in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused person, the military judge and the panel of a General Court Martial, if one is convened, to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused person is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
Accused not to cross-examine witnesses under 18
183.3 (1) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences
(2) In any proceedings against an accused person in respect of an offence punishable under section 130 that is an offence under section 264, 271, 272 or 273 of the Criminal Code, the military judge shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Other witnesses
(3) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused person not personally cross-examine the witness, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the military judge shall consider
(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused person;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and
(g) any other factor that the military judge considers relevant.
No adverse inference
(5) No adverse inference may be drawn from the fact that counsel is, or is not, provided under this section.
Non-disclosure of witness’s identity
183.4 (1) In any proceedings against an accused person in respect of a service offence, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Hearing may be held
(2) The military judge may hold a hearing to determine whether the order should be made, and the hearing may be in private.
Factors to be considered
(3) In determining whether to make the order, the military judge shall consider
(a) the right to a fair and public hearing;
(b) the nature of the offence;
(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d) whether the order is needed to protect the security of anyone known to the witness;
(e) whether the order is needed to protect the identity of a peace officer, as defined in section 2 of the Criminal Code, who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(h) the importance of the witness’s testimony to the case;
(i) whether effective alternatives to the making of the order are available in the circumstances;
(j) the salutary and deleterious effects of the order; and
(k) any other factor that the military judge considers relevant.
No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Order restricting publication — sexual offences
183.5 (1) Subject to subsection (2), a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify a victim or a witness not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347 of the Criminal Code,
(ii) any offence under the Criminal Code, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it had occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application
(2) In proceedings in respect of any offence referred to in subsection (1), the military judge shall
(a) as soon as feasible, inform the victim and any witness under the age of 18 years of their right to make an application for the order; and
(b) on application of the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(3) Subject to subsection (4), in proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(4) In proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall
(a) as soon as feasible, inform the victim of his or her right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
Child pornography
(5) In proceedings in respect of an offence punishable under section 130 that is an offence under section 163.1 of the Criminal Code, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall make an order directing that any information that could identify a witness who is under the age of 18 years or any person who is the subject of any representation, written material or recording that consti­tutes child pornography, as defined in that section 163.1, not be published in any document or broadcast or transmitted in any way.
Limitation
(6) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of military justice if it is not the purpose of the disclosure to make the information known in the community.
Order restricting publication — victims and witnesses
183.6 (1) Unless an order is made under section 183.5, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim or witness not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Military justice system participants
(2) On application of the prosecutor in respect of a military justice system participant who is involved in proceedings in respect of an offence referred to in subsection (3) or on application of such a military justice system participant, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the military justice system participant not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
Offences
(3) An offence for the purpose of subsection (2) is any of the following:
(a) an offence punishable under section 130 that is an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13 of the Criminal Code or that is a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act;
(d) an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Security of Information Act and that is committed in relation to an offence referred to in paragraph (c).
Limitation
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of military justice if it is not the purpose of the disclosure to make the information known in the community.
Application
(5) An application for an order under this section must be made in accordance with regulations made by the Governor in Council.
Grounds
(6) The application must set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of military justice.
Hearing may be held
(7) The military judge may hold a hearing to determine whether an order under this section should be made, and the hearing may be held in private.
Factors to be considered
(8) In determining whether to make an order under this section, the military judge shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or military justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or military justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;
(e) whether effective alternatives are available to protect the identity of the victim, witness or military justice system participant;
(f) the salutary and deleterious effects of the order;
(g) the impact of the order on the freedom of expression of those affected by it; and
(h) any other factor that the military judge considers relevant.
Conditions
(9) An order made under this section may be subject to any conditions that the military judge thinks fit.
Publication prohibited
(10) Unless the military judge refuses to make an order under this section, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing held under subsection (7); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or military justice system participant in the proceedings.
Security of witnesses
183.7 (1) In any proceedings against an accused person, a military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial, may, on application of the prosecutor or a witness or on his or her own motion, make any order other than one that may be made under section 180, if the military judge is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of military justice.
Factors to be considered
(2) In determining whether to make the order, the military judge shall consider
(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the right to a fair and public hearing;
(d) the nature of the service offence;
(e) whether the witness needs the order to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the security of anyone known to the witness;
(g) society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;
(h) the importance of the witness’s testimony to the case;
(i) whether effective alternatives to the making of the order are available in the circumstances;
(j) the salutary and deleterious effects of the order; and
(k) any other factor that the military judge considers relevant.
No adverse inference
(3) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
18. The Act is amended by adding the following after section 189:
Pleas
Pleas permitted
189.1 (1) An accused person who makes an application under subsection (2) or who, after the commencement of the trial, is called on to plead may plead guilty or not guilty, or any other plea authorized by regulations made by the Governor in Council.
Plea of guilty
(2) At any time after a General Court Martial is convened but before the commencement of the trial, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Conditions for accepting guilty plea
(3) The military judge may accept a plea of guilty only if he or she is satisfied that
(a) the accused person is making the plea voluntarily; and
(b) the accused person
(i) understands that the plea is an admission of the essential elements of the service offence,
(ii) understands the nature and consequences of the plea, and
(iii) understands that the military judge is not bound by any agreement made between the accused person and the prosecutor.
Validity of plea
(4) The failure of the military judge to fully inquire whether the conditions set out in subsection (3) are met does not affect the validity of the plea.
Refusal to plead
(5) If an accused person refuses to plead or does not answer directly, he or she is deemed to have made a plea of not guilty.
Allowing time
(6) An accused person is not entitled as of right to have their trial postponed, but the military judge may, if he or she considers that the accused person should be allowed further time to plead or prepare for their defence or for any other reason, adjourn the trial to a later time, on any terms that the military judge considers proper.
Included or other offence
(7) Despite any other provision of this Act, if an accused person or defendant pleads not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence, the military judge may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the military judge shall find the accused person or defendant not guilty of the offence charged and find him or her guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court martial.
Inquiry of court — serious personal injury offence
(8) If the accused person is charged with a service offence that is a serious personal injury offence and the accused person and the prosecutor have entered into an agreement under which the accused person will enter a plea of guilty of the service offence charged — or a plea of not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence — the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether reasonable steps were taken to inform the victims of the agreement.
Inquiry of court — certain offences
(9) If the accused person is charged with a serious offence that is not a serious personal injury offence and the accused person and the prosecutor have entered into an agreement referred to in subsection (8), the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Duty to inform
(10) If subsection (8) or (9) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Validity of plea
(11) Neither the failure of the military judge to inquire of the prosecutor as required under subsection (8) or (9) nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement affects the validity of the plea.
Definition of “serious personal injury offence”
(12) In this section, “serious personal injury offence” means
(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or
(b) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence.
2008, c. 29, s. 14
19. Section 191.1 of the Act is repealed.
20. Section 215 of the Act is renumbered as subsection 215(1) and is amended by adding the following:
Consideration of victim’s safety and security
(2) If the service tribunal makes a decision that the carrying into effect of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Copy to victim
(3) The service tribunal shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
21. 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 a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1).
22. 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 a decision to make an order under subsection 180.05(1) or 180.07(1).
23. The Act is amended by adding the following after section 302:
Publication prohibited
303. (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under section 180.03;
(b) any evidence taken, information given or submissions made at a hearing under subsection 180.04(1) or 180.06(2);
(c) the determination of a military judge in respect of the making of an order under subsection 180.05(1) or 180.07(1) and the reasons provided under section 180.08, unless the military judge, after taking into account the interests of military justice and the right to privacy of the person to whom the record relates, orders that the determination and the reasons may be published, broadcast or transmitted.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
R.S., c. C-46
CRIMINAL CODE
2001, c. 32, s. 11
24. (1) Paragraph 423.1(1)(b) of the Criminal Code is replaced by the following:
(b) a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties; or
2001, c. 32. s. 11
(2) Paragraph 423.1(2)(a) of the Act is replaced by the following:
(a) using violence against the justice system participant, military justice system participant or journalist, or anyone known to him or her or destroying or causing damage to the property of any of those persons;
2001, c. 32, s. 11
(3) Paragraphs 423.1(2)(c) to (e) of the English version of the Act are replaced by the following:
(c) persistently or repeatedly following the justice system participant, military justice system participant or journalist, or anyone known to him or her, including following any of those persons in a disorderly manner on a highway;
(d) repeatedly communicating with, either directly or indirectly, the justice system participant, military justice system participant or journalist, or anyone known to him or her; and
(e) besetting or watching the place where the justice system participant, military justice system participant or journalist, or anyone known to him or her resides, works, attends school, carries on business or happens to be.
(4) Section 423.1 of the Act is amended by adding the following after subsection (3):
Definition of “military justice system participant”
(4) In this section, “military justice system participant” has the same meaning as in subsection 2(1) of the National Defence Act.
RELATED AND COORDINATING AMENDMENTS
2013, c. 24
25. (1) In this section, “other Act” means the Strengthening Military Justice in the Defence of Canada Act.
(2) On the first day on which both section 62 of the other Act and subsection 3(2) of this Act are in force,
(a) paragraph 203.1(1)(b) of the National Defence Act is replaced by the following:
(b) to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society.
(b) paragraph 203.1(2)(c) of the National Defence Act is replaced by the following:
(c) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(c) paragraph 203.1(2)(i) of the National Defence Act is replaced by the following:
(i) to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.
(d) sections 203.6 and 203.7 of the National Defence Act are replaced by the following:
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 physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
Filing of statement
(2) The victim’s statement must be filed in accordance with 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 the victim to present the statement by
(a) reading it;
(b) reading it in the presence and close proximity of any support person of the victim’s choice;
(c) subject to subsection 203.7(4), reading it outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or
(d) presenting it in any other manner that the court martial considers appropriate.
Evidence concerning victim admissible
(4) Whether or not a statement has been prepared and filed in accordance with this section, 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 whether the offender should be discharged absolutely.
Inquiry by court martial
203.7 (1) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 203.6(1).
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.
Photograph
(3) During the presentation
(a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings; or
(b) if the statement is presented by an individual acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings.
Conditions of exclusion
(4) The victim shall not present the statement outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Consideration of statement
(5) In considering the statement, the court martial shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection 203.6(1) and disregard any other portion.
Military Impact Statement
Military impact statement
203.71 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made on the behalf of the Canadian Forces describing the harm done to discipline, efficiency or morale as a result of the commission of the offence and the impact of the offence on discipline, efficiency or morale.
Filing of statement
(2) The statement must be prepared by an officer or non-commissioned member who is authorized to do so by regulations made by the Governor in Council and it must be filed in accordance with regulations made by the Governor in Council.
Presentation of statement
(3) The court martial shall, on the request of the person who made the statement, permit the person to present the statement by reading it or by presenting it in any other manner that the court martial considers appropriate.
Copy of statement
(4) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.
Community Impact Statement
Community impact statement
203.72 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement, made by an individual on a community’s behalf, describing the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.
Filing of statement
(2) The statement must be filed in accord­ance with regulations made by the Governor in Council.
Presentation of statement
(3) The court martial shall, on the request of the individual who made the statement, permit the individual to present the statement by
(a) reading it;
(b) reading it in the presence and close proximity of any support person of the individual’s choice;
(c) subject to subsection (4), reading it outside the courtroom or behind a screen or other device that would allow the individual not to see the offender; or
(d) presenting it in any other manner that the court martial considers appropriate.
Conditions of exclusion
(4) The individual making the statement shall not present it outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Copy of statement
(5) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.
(e) the National Defence Act is amended by adding the following before section 203.9:
Court martial to consider restitution order
203.81 (1) A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely shall consider making a restitution order under section 203.9.
Inquiry by court martial
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence or directing that the offender be discharged absolutely, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3) On application of the prosecutor or on its own motion, the court martial may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
Form
(4) Victims and other persons may indicate whether they are seeking restitution by completing a form prescribed in regulations made by the Governor in Council, and, if they are seeking restitution, shall establish, in the same manner, their losses and damages, the amount of which must be readily ascertainable.
Reasons
(5) If a victim seeks restitution and the court martial does not make a restitution order, it shall include in the court record a statement of its reasons for not doing so.
(f) sections 203.91 and 203.92 of the National Defence Act are replaced by the following:
Ability to pay
203.901 The offender’s financial means or ability to pay does not prevent the court martial from making an order under section 203.9.
Payment under order
203.902 In making an order under section 203.9, the court martial shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court martial is of the opinion that the amount should be paid in instalments, in which case the court martial shall set out a periodic payment scheme in the order.
More than one person
203.903 An order under section 203.9 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
Enforcing restitution order
203.91 (1) An offender who fails to pay an amount that is ordered to be paid in a restitution order by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order, and the person who was to be paid the amount or to whom the periodic payment was to be paid or made, as the case may be, may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil 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
(2) All or any part of an amount that is ordered to be paid in a restitution order may be taken out of moneys found in the possession of the offender 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, so directs.
(g) section 203.93 of the English version of the National Defence Act is replaced by the following:
Notice of order
203.93 A court martial that makes a restitution order 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.
(3) If section 12 of this Act comes into force before section 34 of the other Act, then that section 34 is repealed.
(4) If section 12 of this Act comes into force on the same day as section 34 of the other Act, then that section 34 is deemed to have come into force before that section 12.
(5) If section 14 of this Act comes into force before section 35 of the other Act, then that section 35 is repealed.
(6) If section 14 of this Act comes into force on the same day as section 35 of the other Act, then that section 35 is deemed to have come into force before that section 14.
(7) If section 14 of this Act comes into force before subsection 36(1) of the other Act, then that subsection 36(1) is repealed.
(8) If section 14 of this Act comes into force on the same day as subsection 36(1) of the other Act, then that subsection 36(1) is deemed to have come into force before that section 14.
(9) If section 14 of this Act comes into force before subsection 36(2) of the other Act, then that subsection 36(2) is repealed.
(10) If section 14 of this Act comes into force on the same day as subsection 36(2) of the other Act, then that subsection 36(2) is deemed to have come into force before that section 14.
(11) If section 14 of this Act comes into force before subsection 36(3) of the other Act, then that subsection 36(3) is repealed.
(12) If section 14 of this Act comes into force on the same day as subsection 36(3) of the other Act, then that subsection 36(3) is deemed to have come into force before that section 14.
(13) If section 14 of this Act comes into force before subsection 36(4) of the other Act, then that subsection 36(4) is repealed.
(14) If section 14 of this Act comes into force on the same day as subsection 36(4) of the other Act, then that subsection 36(4) is deemed to have come into force before that section 14.
(15) On the first day on which both section 62 of the other Act and section 14 of this Act are in force,
(a) the portion of subsection 203.1(2) of the National Defence Act before paragraph (a) is replaced by the following:
Objectives
(2) The fundamental purposes shall be achieved by imposing just punishments that have one or more of the following objectives:
(b) paragraph 203.3(c) of the National Defence Act is replaced by the following:
(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;
(16) On the first day on which both section 16 of this Act and section 50 of the other Act are in force, section 180 of the National Defence 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) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial, may, on application of the prosecutor or a witness or on his or her own motion, order that the public be excluded during the whole or any part of the proceedings, if the 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.
Factors to be considered
(3) In determining whether an order under subsection (2) is in the interest of the proper administration of military justice, the military judge shall consider
(a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;
(d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of military justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the order are available in the circumstances;
(g) the salutary and deleterious effects of the order; and
(h) any other factor that the military judge considers relevant.
No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Reasons to be stated
(5) If an accused person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the accused person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.
Witnesses
(6) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the military judge.
Clearing court
(7) For the purpose of any deliberation, a military judge may cause the place where the proceedings are being held to be cleared.
(17) If section 64 of the other Act comes into force before section 20 of this Act, then that section 20 is replaced by the following:
20. Section 215 of the Act is amended by adding the following after subsection (1):
Consideration of victim’s safety and security
(1.1) If the service tribunal makes a decision that the carrying into effect of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Copy to victim
(1.2) The service tribunal shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
(18) If section 20 of this Act comes into force before section 64 of the other Act, then that section 64 is amended by adding, after the subsection 215(1) that it enacts, the following:
Consideration of victim’s safety and security
(1.1) If the service tribunal makes a decision that the carrying into effect of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.
Copy to victim
(1.2) The service tribunal shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.
(19) If section 64 of the other Act comes into force on the same day as section 20 of this Act, then that section 64 is deemed to have come into force before that section 20, and subsection (17) applies as a consequence.
(20) If section 69 of the other Act comes into force before section 21 of this Act, then that section 21 is replaced by the following:
21. Section 230 of the Act is amended by adding the following after paragraph (i):
(i.1) the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);
(21) If section 21 of this Act comes into force before section 69 of the other Act, then that section 69 is replaced by the following:
69. Paragraph 230(h) of the Act is replaced by the following:
(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 of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);
(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;
(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).
(22) If section 69 of the other Act comes into force on the same day as section 21 of this Act, then that section 69 is deemed to have come into force before that section 21, and subsection (20) applies as a consequence.
(23) If section 70 of the other Act comes into force before section 22 of this Act, then that section 22 is replaced by the following:
22. Section 230.1 of the Act is amended by adding the following after paragraph (j):
(j.1) the legality of a decision to make an order under subsection 180.05(1) or 180.07(1);
(24) If section 22 of this Act comes into force before section 70 of the other Act, then that section 70 is replaced by the following:
70. Paragraph 230.1(i) of the Act is replaced by the following:
(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 of a decision to make an order under subsection 180.05(1) or 180.07(1);
(l) 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;
(m) 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).
(25) If section 70 of the other Act comes into force on the same day as section 22 of this Act, then that section 70 is deemed to have come into force before that section 22, and subsection (23) applies as a consequence.
2014, c. 6
26. (1) In this section, “other Act” means the Not Criminally Responsible Reform Act.
(2) On the first day on which both section 25 of the other Act and section 5 of this Act are in force, section 71.04 of the National Defence Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:
(b.1) hearings held under section 202.161 to decide whether the accused person is a high-risk accused and the dispositions made at those hearings; and
(3) On the first day on which both section 25 of the other Act and section 18 of this Act are in force,
(a) subsection 2(1) of the National Defence Act is amended by adding the following in alphabetical order:
“serious personal injury offence”« infraction grave contre la personne »
“serious personal injury offence” means
(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, or
(b) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence;
(b) subsection 189.1(12) of the National Defence Act is repealed; and
(c) subsection 202.161(5) of the National Defence Act is repealed.
Definitions
27. (1) The following definitions apply in this section.
“first Act”« première loi »
“first Act” means the Strengthening Military Justice in the Defence of Canada Act, chapter 24 of the Statutes of Canada, 2013.
“second Act”« deuxième loi »
“second Act” means the Not Criminally Responsible Reform Act, chapter 6 of the Statutes of Canada, 2014.
(2) If both section 59 of the first Act and section 26 of the second Act come into force before subsection 3(2) of this Act, then, on the day on which that subsection 3(2) comes into force,
(a) subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(b) subsection 202.201(23) of the National Defence Act is repealed; and
(c) section 203 of the National Defence Act and the heading “Interpretation” before it are repealed.
(3) If section 59 of the first Act comes into force before subsection 3(2) of this Act and that subsection 3(2) comes into force before section 26 of the second Act, then,
(a) on the day on which that subsection 3(2) comes into force,
(i) subsection 202.201(15) of the National Defence Act is replaced by the following:
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 physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(ii) subsection 202.201(22) of the National Defence Act is repealed, and
(iii) section 203 of the National Defence Act and the heading “Interpretation” before it are repealed; and
(b) on the day on which that section 26 comes into force,
(i) subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(ii) subsection 202.201(23) of the National Defence Act is repealed.
(4) If section 59 of the first Act comes into force on a day that is before the day on which subsection 3(2) of this Act comes into force and that subsection 3(2) comes into force on the same day as section 26 of the second Act, then that section 26 is deemed to have come into force before that subsection 3(2), and subsection (2) applies as a consequence.
(5) If section 59 of the first Act comes into force on the same day as subsection 3(2) of this Act and section 26 of the second Act is not in force on that day, then that section 59 is deemed to have come into force before that subsection 3(2), and subsection (3) applies as a consequence.
(6) If section 26 of the second Act comes into force before subsection 3(2) of this Act and that subsection 3(2) comes into force before section 59 of the first Act, then, on the day on which that subsection 3(2) comes into force,
(a) subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(b) subsection 202.201(23) of the National Defence Act is repealed;
(c) section 59 of the first Act is repealed; and
(d) section 62 of the first Act is amended by repealing the section 203 that it enacts and the heading “Interpretation” before that section 203.
(7) If section 26 of the second Act comes into force on a day that is before the day on which subsection 3(2) of this Act comes into force and that subsection 3(2) comes into force on the same day as section 59 of the first Act, then that section 59 is deemed to have come into force before that subsection 3(2), and subsection (2) applies as a consequence.
(8) If section 26 of the second Act comes into force on the same day as subsection 3(2) of this Act and section 59 of the first Act is not in force on that day, then that section 26 is deemed to have come into force before that subsection 3(2), and subsection (6) applies as a consequence.
(9) If subsection 3(2) of this Act comes into force before section 59 of the first Act and that section 59 comes into force before section 26 of the second Act, then
(a) on the day on which that section 59 comes into force,
(i) subsection 202.201(15) of the National Defence Act is replaced by the following:
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 physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(ii) subsection 202.201(22) of the National Defence Act is repealed, and
(iii) section 203 of the National Defence Act and the heading before it are repealed; and
(b) on the day on which that section 26 comes into force,
(i) subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(ii) subsection 202.201(23) of the National Defence Act is repealed.
(10) If subsection 3(2) of this Act comes into force before section 26 of the second Act and that section 26 comes into force before section 59 of the first Act, then, on the day on which that section 26 comes into force,
(a) subsection 202.201(16) of the National Defence Act is replaced by the following:
Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(b) subsection 202.201(23) of the National Defence Act is repealed;
(c) section 59 of the first Act, as enacted by subsection 32(3) of the second Act, is repealed; and
(d) section 62 of the first Act is amended by repealing the section 203 that it enacts and the heading “Interpretation” before that section 203.
(11) If subsection 3(2) of this Act comes into force on a day that is before the day on which section 59 of the first Act comes into force and that section 59 comes into force on the same day as section 26 of the second Act, then that section 26 is deemed to have come into force before that section 59, and subsection (10) applies as a consequence.
(12) If subsection 3(2) of this Act, section 59 of the first Act and section 26 of the second Act all come into force on the same day, then those sections 59 and 26 are deemed to have come into force before that subsection 3(2), and subsection (2) applies as a consequence.
(13) If section 59 of the first Act is not in force on the first day on which both subsection 3(2) of this Act and section 26 of the second Act are in force, then the definition “victim” in subsection 2(1) of the National Defence Act is replaced by the following:
“victim”« victime »
“victim” means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and section 202.201, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person.
(14) On the first day on which both subsection 3(2) of this Act and section 59 of the first Act are in force, the definition “victim” in subsection 2(1) of the National Defence Act is replaced by the following:
“victim”« victime »
“victim” means a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and sections 202.201, 203.6 and 203.7, a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person.
(15) If both section 59 of the first Act and section 26 of the second Act are not in force on the first day on which both subsection 3(3) and section 18 of this Act are in force, then
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of section 189.1:
(b) section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of section 189.1 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(16) If both section 18 of this Act and section 59 of the first Act are not in force on the first day on which both subsection 3(3) of this Act and section 26 of the second Act are in force, then
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of section 202.201:
(b) section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of section 202.201 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(17) On the first day on which any of the circumstances set out in subsection (18) exist,
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1 and 202.201:
(b) section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1 and 202.201 if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(18) For the purposes of subsection (17), the circumstances are the following:
(a) section 18 of this Act and section 26 of the second Act come into force on the same day and that day is after the day on which subsection 3(3) of this Act came into force and before the day on which section 59 of the first Act comes into force;
(b) section 18 of this Act and section 26 of the second Act came into force on the same day and subsection 3(3) of this Act comes into force after that day and before the day on which section 59 of the first Act comes into force;
(c) subsection 3(3) and section 18 of this Act and section 26 of the second Act all come into force on the same day and section 59 of the first Act is not in force on that day;
(d) subsection 3(3) of this Act and section 26 of the second Act come into force on the same day and that day is after the day on which section 18 of this Act came into force and before the day on which section 59 of the first Act comes into force;
(e) subsection 3(3) and section 18 of this Act come into force on the same day and that day is after the day on which section 26 of the second Act came into force and before the day on which section 59 of the first Act comes into force;
(f) section 26 of the second Act came into force before section 18 of this Act, that section 18 came into force before subsection 3(3) of this Act and that subsection 3(3) comes into force before section 59 of the first Act;
(g) section 18 of this Act came into force before section 26 of the second Act, that section 26 came into force before subsection 3(3) of this Act and that subsection 3(3) comes into force before section 59 of the first Act.
(19) On the first day on which any of the circumstances set out in subsection (20) exist,
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 202.201, 203.6, 203.7 and 203.81:
(b) section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(20) For the purposes of subsection (19), the circumstances are the following:
(a) section 59 of the first Act and subsection 3(3) of this Act are both in force and neither section 18 of this Act nor section 26 of the second Act are in force;
(b) section 59 of the first Act and section 26 of the second Act come into force on the same day and that day is after the day on which subsection 3(3) of this Act came into force and before the day on which section 18 of this Act comes into force;
(c) section 59 of the first Act and section 26 of the second Act came into force on the same day and subsection 3(3) of this Act comes into force after that day and before the day on which section 18 of this Act comes into force;
(d) subsection 3(3) of this Act, section 59 of the first Act and section 26 of the second Act all come into force on the same day and section 18 of this Act is not in force on that day.
(21) On the first day on which subsection 3(3) and section 18 of this Act, section 59 of the first Act and section 26 of the second Act are all in force,
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:
(b) section 2 of the National Defence Act is amended by adding the following after subsection (1.2):
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(22) On the first day on which any of the circumstances set out in subsection (23) exist,
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1 and 202.201:
(b) subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1 and 202.201 if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(23) For the purposes of subsection (22), the circumstances are the following:
(a) subsection (15) has produced its effects and section 26 of the second Act comes into force before section 59 of the first Act;
(b) subsection (16) has produced its effects and section 18 of this Act comes into force before section 59 of the first Act.
(24) If, after subsection (16) has produced its effects, section 59 of the first Act comes into force before section 18 of this Act, then
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 202.201, 203.6, 203.7 and 203.81:
(b) subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(25) On the first day on which any of the circumstances set out in subsection (26) exist,
(a) the portion of subsection 2(1.1) of the National Defence Act before paragraph (a) is replaced by the following:
Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III or may act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81:
(b) subsection 2(1.3) of the National Defence Act is replaced by the following:
Exception — acting on victim’s behalf
(1.3) An individual is not entitled to act on a victim’s behalf for the purposes of sections 189.1, 202.201, 203.6, 203.7 and 203.81 if the individual is an accused person in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not responsible on account of mental disorder or unfit to stand trial in respect of that offence.
(26) For the purposes of subsection (25), the circumstances are the following:
(a) subsection (15) has produced its effects and section 59 of the first Act is in force;
(b) section 18 of this Act and section 59 of the first Act come into force on the same day and that day is after the day on which subsection (16) has produced its effects;
(c) subsection (17) has produced its effects and section 59 of the first Act is in force;
(d) subsection (19) has produced its effects and section 18 of this Act is in force;
(e) subsection (22) has produced its effects and section 59 of the first Act is in force.
2015, c. 13
28. (1) In this section, “other Act” means the Victims Bill of Rights Act.
(2) On the first day on which both section 2 of the other Act and section 5 of this Act are in force,
(a) subsection 71.19(2) of the National Defence Act is replaced by the following:
Exception — Acts, regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act, the Privacy Act and the Canadian Victims Bill of Rights and in respect of any orders, rules and regulations made under any of those Acts.
(b) subsection 22(2) of the Canadian Victims Bill of Rights is replaced by the following:
Exception — Acts, regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and in respect of orders, rules and regulations made under any of those Acts. It also does not apply in respect of Division 1.1 of Part III of the National Defence Act and in respect of any orders, rules and regulations made under that Act to the extent that they apply in relation to that Division.
(3) If section 12 of the other Act comes into force before section 24 of this Act, then subsections 24(2) and (3) of this Act are repealed.
(4) If section 12 of the other Act comes into force on the same day as section 24 of this Act, then that section 24 is deemed to have come into force before that section 12.
TRANSITIONAL PROVISION
Section 203.1 of National Defence Act
29. Paragraphs 203.1(1)(b) and 203.1(2)(c) and (i) of the National Defence Act, as enacted, respectively, by paragraphs 25(2)(a), (b) and (c), apply only in respect of sentences imposed in respect of conduct engaged in on or after the day on which those paragraphs 25(2)(a), (b) and (c) produce their effects.
COMING INTO FORCE
Order in council
30. The provisions of this Act, other than sections 25 to 29, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Explanatory NotesNational Defence Act
Clause 2: Existing text of the heading:
INTERPRETATION
Clause 3: (1) Existing text of the definition:
“summary trial” means a trial conducted by or under the authority of a commanding officer pursuant to section 163 and a trial by a superior commander pursuant to section 164;
(2) New.
(3) New.
Clause 4: New.
Clause 5: New.
Clause 6: New.
Clause 7: Relevant portion of subsection 158(1):
158. (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including
... 
(f) the necessity to ensure the safety of the person under arrest or any other person.
Clause 8: (1) New.
(2) Existing text of subsection 158.6(3):
(3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1).
Clause 9: New.
Clause 10: New.
Clause 11: New.
Clause 12: Existing text of sections 160 and 161:
160. In this Division, “commanding officer”, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.
Laying of Charge
161. Proceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.
Clause 13: Existing text of the heading and sections 162.1 and 162.2:
Right to Trial by Court Martial
162.1 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.
162.2 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.
Clause 14: Existing text of sections 162.3 to 164.2:
162.3 The definitions in this section apply in this Division.
“commanding officer”, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160.
“superior commander” means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander.
Summary Trials by Commanding Officers
163. (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:
(a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;
(b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;
(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;
(d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and
(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.
(1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.
(2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if
(a) the commanding officer carried out or directly supervised the investigation of the offence;
(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or
(c) the commanding officer laid the charge or caused it to be laid.
(3) Subject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:
(a) detention for a period not exceeding thirty days;
(b) reduction in rank by one rank;
(c) severe reprimand,
(d) reprimand,
(e) a fine not exceeding basic pay for one month, and
(f) minor punishments.
(4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:
(a) detention not exceeding fourteen days;
(b) severe reprimand;
(c) reprimand;
(d) a fine not exceeding basic pay for fifteen days; and
(e) minor punishments.
163.1 (1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to
(a) another officer who has jurisdiction to try the accused person by summary trial; or
(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.
(2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.
(3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).
Summary Trial by Superior Commanders
164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:
(a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;
(b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;
(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;
(d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and
(e) the superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.
(1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.
(2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if
(a) the superior commander carried out or directly supervised the investigation of the offence;
(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or
(c) the superior commander laid the charge or caused it to be laid.
(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.
(4) Subject to the conditions set out in Division 2 relating to punishments, a superior commander at a summary trial may pass a sentence in which any one or more of the following punishments may be included:
(a) severe reprimand;
(b) reprimand; and
(c) fine.
164.1 (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to
(a) another officer who has jurisdiction to try the accused person by summary trial; or
(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.
(2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.
(3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).
Referral to Director of Military Prosecutions
164.2 (1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.
(2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if
(a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and
(b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.
Clause 15: Existing text of section 165.13:
165.13 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.
Clause 16: Existing text of the heading and section 180:
Admission to Courts Martial
180. (1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.
(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
Clause 17: New.
Clause 18: New.
Clause 19: Existing text of section 191.1:
191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Clause 20: New.
Clause 21: Relevant portion of section 230:
230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
Clause 22: Relevant portion of section 230.1:
230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
Clause 23: New.
Criminal Code
Clause 24: (1) Relevant portion of subsection 423.1(1):
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in
... 
(b) a justice system participant in order to impede him or her in the performance of his or her duties; or
(2) and (3) Relevant portion of subsection 423.1(2):
(2) The conduct referred to in subsection (1) consists of
(a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;
... 
(c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;
(d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and
(e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.
(4) New.