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Strengthening Military Justice in the Defence of Canada Act (S.C. 2013, c. 24)

Assented to 2013-06-19

Strengthening Military Justice in the Defence of Canada Act

S.C. 2013, c. 24

Assented to 2013-06-19

An Act to amend the National Defence Act and to make consequential amendments to other Acts

SUMMARY

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,

  • (a) provide for security of tenure for military judges until their retirement;

  • (b) permit the appointment of part-time military judges;

  • (c) specify the purposes, objectives and principles of the sentencing process;

  • (d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;

  • (e) modify the composition of a court martial panel according to the rank of the accused person; and

  • (f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.

The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.

Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Strengthening Military Justice in the Defence of Canada Act.

R.S., c. N-5NATIONAL DEFENCE ACT

Marginal note:2007, c. 5, s. 1
  •  (1) The definition “Provost Marshal” in subsection 2(1) of the National Defence Act is repealed.

  • Marginal note:1998, c. 35, s. 1(4)

    (2) The definition “Grievance Board” in subsection 2(1) of the English version of the Act is repealed.

  • Marginal note:1998, c. 35, s. 1(4)

    (3) The definition “military judge” in subsection 2(1) of the Act is replaced by the following:

    “military judge”

    « juge militaire »

    “military judge” includes a reserve force military judge;

  • Marginal note:1998, c. 35, s. 1(4)

    (4) The definition Comité des griefs in subsection 2(1) of the French version of the Act is replaced by the following:

    « Comité des griefs »

    “Grievances Committee”

    Comité des griefs Le Comité externe d’examen des griefs militaires prorogé par le paragraphe 29.16(1).

  • (5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

    “military police”

    « police militaire »

    “military police” means the officers and non-commissioned members appointed under regulations made for the purposes of section 156;

  • (6) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:

    “Grievances Committee”

    « Comité des griefs »

    “Grievances Committee” means the Military Grievances External Review Committee continued by subsection 29.16(1);

Marginal note:1998, c. 35, s. 4
  •  (1) Paragraph 12(3)(a) of the Act is replaced by the following:

    • (a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;

  • (2) Section 12 of the Act is amended by adding the following after subsection (3):

    • Marginal note:Retroactive effect

      (4) Regulations made under paragraph (3)(a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect

      • (a) in the case of an inquiry under section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or

      • (b) in the case of an inquiry under section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.

 The Act is amended by adding the following after section 18.2:

Canadian Forces Provost Marshal

Marginal note:Appointment
  • 18.3 (1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).

  • Marginal note:Rank

    (2) The Provost Marshal holds a rank that is not less than colonel.

  • Marginal note:Tenure of office and removal

    (3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

  • Marginal note:Powers of inquiry committee

    (4) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

    • (a) the attendance, swearing and examination of witnesses;

    • (b) the production and inspection of documents;

    • (c) the enforcement of its orders; and

    • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

  • Marginal note:Reappointment

    (5) The Provost Marshal is eligible to be reappointed on the expiry of a first or subsequent term of office.

Marginal note:Duties and functions

18.4 The Provost Marshal’s responsibilities include

  • (a) investigations conducted by any unit or other element under his or her command;

  • (b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

  • (c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

  • (d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

Marginal note:General supervision
  • 18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

  • Marginal note:General instructions or guidelines

    (2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

  • Marginal note:Specific instructions or guidelines

    (3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

  • Marginal note:Availability to public

    (4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

  • Marginal note:Exception

    (5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

Marginal note:Annual report

18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.

 Section 29 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Military judges

    (2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.

Marginal note:1998, c. 35, s. 7

 Section 29.11 of the Act is replaced by the following:

Marginal note:Grievances submitted by military judges

29.101 Despite subsection 29.1(1), a griev­ance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.

Marginal note:Final authority

29.11 The Chief of the Defence Staff is the final authority in the griev­ance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:1998, c. 35, s. 7
  •  (1) Subsection 29.12(1) of the Act is replaced by the following:

    Marginal note:Referral to Grievances Committee
    • 29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.

  • Marginal note:1998, c. 35, s. 7

    (2) Paragraph 29.12(2)(b) of the English version of the Act is replaced by the following:

    • (b) any decision made by an authority in respect of the grievance; and

Marginal note:1998, c. 35, s. 7

 Subsection 29.13(2) of the Act is replaced by the following:

  • Marginal note:Reasons

    (2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if

    • (a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or

    • (b) the grievance was submitted by a military judge.

Marginal note:1998, c. 35, s. 7

 Section 29.14 of the Act is replaced by the following:

Marginal note:Delegation
  • 29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that

    • (a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and

    • (b) a grievance submitted by a military judge may not be delegated.

  • Marginal note:Conflict of interest

    (2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.

  • Marginal note:Subdelegation

    (3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).

Marginal note:1998, c. 35, s. 7

 The heading before section 29.16 of the Act is replaced by the following:

Military Grievances External Review Committee
Marginal note:1998, c. 35, s. 7
  •  (1) Subsection 29.16(1) of the Act is replaced by the following:

    Marginal note:Grievances Committee
    • 29.16 (1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

  • Marginal note:1998, c. 35, s. 7

    (2) Subsection 29.16(10) of the English version of the Act is replaced by the following:

    • Marginal note:Secondment

      (10) An officer or a non-commissioned member who is appointed as a member of the Grievances Committee shall be seconded to the Grievances Committee in accordance with section 27.

  • Marginal note:1998, c. 35, s. 7

    (3) Subsection 29.16(11) of the Act is replaced by the following:

    • Marginal note:Oath of office

      (11) Every member shall, before commenc­ing the duties of office, take the following oath of office:

      I, ...................., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

Marginal note:R.S., c. 31(1st Supp.), s. 60 (Sch. I, s. 13)

 Subsection 30(4) of the Act is replaced by the following:

  • Marginal note:Reinstatement

    (4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.

  • Marginal note:Deeming provision

    (5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.

Marginal note:1998, c. 35, s. 10

 Subsection 35(1) of the Act is replaced by the following:

Marginal note:Rates and conditions of pay
  • 35. (1) The rates and conditions of issue of pay of officers and non-commissioned members, other than those mentioned in paragraph 12(3)(a), shall be established by the Treasury Board.

Marginal note:1998, c. 35, s. 20

 Paragraph 66(1)(b) of the Act is replaced by the following:

  • (b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.

 The Act is amended by adding the following after section 72:

Civil Defences

Marginal note:Rules and principles of civil courts applicable

72.1 All rules and principles that are followed from time to time in the civil courts and that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

Marginal note:1998, c. 35, s. 29

 Section 101.1 of the Act is replaced by the following:

Marginal note:Failure to comply with conditions

101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under this Division or Division 3 or 8, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:1998, c. 35, s. 32

 Subsection 118(1) of the Act is replaced by the following:

Definition of “tribunal”

  • 118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.

Marginal note:1992, c. 16, s. 1

 Section 137 of the English version of the Act is replaced by the following:

Marginal note:Offence charged, attempt proved
  • 137. (1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.

  • Marginal note:Attempt charged, full offence proved

    (2) If, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be found guilty of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

  • Marginal note:Conviction a bar

    (3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.

Marginal note:1998, c. 35, s. 36; 2001, c. 32, s. 68(F), c. 41, s. 98

 Sections 140.3 and 140.4 of the Act are repealed.

Marginal note:1998, c. 35, s. 38

 Subsection 142(2) of the Act is replaced by the following:

  • Marginal note:Reduction in rank during detention

    (2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.

 The Act is amended by adding the following after section 145:

Marginal note:Civil enforcement of fines
  • 145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.

  • Marginal note:Effect of filing order

    (2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.

Marginal note:1995, c. 39, s. 176; 1996, c. 19, s. 83.1
  •  (1) Subsection 147.1(1) of the Act is replaced by the following:

    Marginal note:Prohibition order
    • 147.1 (1) If a court martial considers it desirable, in the interests of the safety of an offender or of any other person, it shall — in addition to any other punishment that may be imposed for the offence — make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, on convicting or discharging absolutely the offender of

      • (a) an offence in the commission of which violence against a person was used, threat­ened or attempted;

      • (b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance;

      • (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act; or

      • (d) an offence that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code.

  • Marginal note:1995, c. 39, s. 176

    (2) Subsection 147.1(3) of the Act is replaced by the following:

    • Marginal note:Application of order

      (3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the perform­ance of their duties.

Marginal note:1995, c. 39, s. 176
  •  (1) The portion of section 147.2 of the Act before paragraph (a) is replaced by the following:

    Marginal note:Requirement to surrender

    147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the offender against whom the order is made to surrender to a member of the military police or to the offender’s commanding officer

  • Marginal note:1995, c. 39, s. 176

    (2) Paragraphs 147.2(a) and (b) of the English version of the Act are replaced by the following:

    • (a) any thing the possession of which is prohibited by the order that is in the possession of the offender on the commencement of the order; and

    • (b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the offender on the commencement of the order.

  • Marginal note:1995, c. 39, s. 176

    (3) The portion of section 147.2 of the English version of the Act after paragraph (b) is replaced by the following:

    The court martial shall specify in the order a reasonable period for surrendering the thing or document, and during that period section 117.01 of the Criminal Code does not apply to the offender.

 Section 148 of the Act and the heading before it are replaced by the following:

Intermittent Sentences

Marginal note:Imprisonment or detention
  • 148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

    • (a) that the sentence be served intermittently at the times specified in the order; and

    • (b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.

  • Marginal note:Application to vary intermittent sentence

    (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying

    • (a) to their commanding officer, in the case of a sentence imposed by summary trial; or

    • (b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.

  • Marginal note:New sentence of imprisonment or detention

    (3) If a service tribunal imposes a sentence of imprisonment or detention on an offender who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the tribunal orders otherwise.

  • Marginal note:Hearing into breach of conditions

    (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by

    • (a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or

    • (b) a military judge, in the case of a condition imposed by a court martial.

  • Marginal note:Consequences of breach

    (5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

    • (a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

    • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.

Marginal note:R.S., c. 31 (1st Supp.), s. 47

 The heading before section 150 and sections 150 and 151 of the Act are repealed.

Marginal note:1998, c. 35, s. 40

 Paragraph (d) of the definition infraction désignée in section 153 of the French version of the Act is replaced by the following:

  • d) toute infraction d’organisation criminelle punissable aux termes de la présente loi;

 Section 155 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Limitations on power of arrest

    (2.1) Unless ordered to do so by a superior officer, an officer or non-commissioned member shall not order the arrest of a person, nor arrest a person, without a warrant for an offence that is not a serious offence if:

    • (a) they have reasonable grounds to believe that the public interest may be satisfied without so arresting the person, having regard to all the circumstances including the need to

      • (i) establish the person’s identity,

      • (ii) secure or preserve evidence of or relating to the offence, and

      • (iii) prevent the continuation or repetition of the offence or the commission of another offence; and

    • (b) they have no reasonable grounds to believe that, if the person is not so arrested, the person will fail to attend before a service tribunal in order to be dealt with according to law.

Marginal note:1998, c. 35, s. 41
  •  (1) The portion of section 156 of the Act before paragraph (a) is replaced by the following:

    Marginal note:Powers of military police
    • 156. (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may

  • (2) Section 156 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Arrest without warrant — limitations

      (2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.

Marginal note:1998, c. 35, s. 42

 Subsection 158(3) of the Act is replaced by the following:

  • Marginal note:Duty to receive into service custody

    (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

Marginal note:1998, c. 35, s. 42

 Subsection 158.6(2) of the French version of the Act is replaced by the following:

  • Marginal note:Révision

    (2) L’ordonnance de libération, inconditionnelle ou sous condition, rendue par l’officier réviseur peut être révisée par le commandant qui a désigné celui-ci ou, lorsqu’il est lui-même commandant, par l’officier immédiatement supérieur devant lequel il est responsable en matière de discipline.

 The Act is amended by adding the following before section 159:

Marginal note:Review of directions
  • 158.7 (1) A military judge may, on application by counsel for the Canadian Forces or by a person released with conditions and after giving counsel and the released person an opportunity to be heard, review any of the following directions and make any direction that a custody review officer may make under subsection 158.6(1):

    • (a) a direction that was reviewed under subsection 158.6(2);

    • (b) a direction that was made under subsection 158.6(3); and

    • (c) a direction that was made under this section.

  • Marginal note:Conditions

    (2) A military judge shall not direct that a condition, other than the condition of keeping the peace and being of good behaviour, be imposed unless counsel for the Canadian Forces shows cause why it is necessary that the condition be imposed.

  • Marginal note:Further applications

    (3) If an application under this section has been heard, another application under this section may not be made with respect to the same person, except with leave of a military judge, before the expiry of 30 days from the day on which a decision was made in respect of the most recent application.

Marginal note:1998, c. 35, s. 42

 Paragraphs 159.2(b) and (c) of the Act are replaced by the following:

  • (b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of military justice; and

  • (c) custody is necessary to maintain public trust in the administration of military justice, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

 The Act is amended by adding the following after section 159.9:

Direction Cancelled

Marginal note:Regulations

159.91 A direction to retain a person in custody or impose conditions on their release is cancelled in the circumstances prescribed in regulations made by the Governor in Council.

 Section 161 of the Act is renumbered as subsection 161(1) and is amended by adding the following:

  • Marginal note:Duty to act expeditiously

    (2) A charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions.

Marginal note:2008, c. 29, s. 4

 Subsection 163(1.1) of the Act is replaced by the following:

  • Marginal note:Limitation periods

    (1.1) A commanding officer may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.

  • Marginal note:Waiver

    (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

Marginal note:1998, c. 35, s. 42
  •  (1) Paragraph 164(1)(a) of the Act is replaced by the following:

    • (a) the accused person is an officer below the rank of colonel or a non-commissioned member above the rank of sergeant;

  • Marginal note:2008, c. 29, s. 5

    (2) Subsection 164(1.1) of the Act is replaced by the following:

    • Marginal note:Limitation periods

      (1.1) A superior commander may not try an accused person by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.

    • Marginal note:Waiver

      (1.2) The accused person may, in accordance with regulations made by the Governor in Council, waive the application of subsection (1.1).

    • Marginal note:Exceptions — military judge and rank

      (1.3) Despite paragraph (1)(a), a superior commander may not try a military judge by summary trial and may only try an officer of the rank of lieutenant-colonel by summary trial if the superior commander is of or above the rank of colonel.

  • Marginal note:1998, c. 35, s. 42

    (3) Subsection 164(3) of the Act is repealed.

  • (4) Section 164 of the Act is amended by adding the following after subsection (4):

    • Marginal note:Officer cadets

      (5) A superior commander who passes sentence on an officer cadet may include, in addition to the punishments described in subsection (4), minor punishments.

Marginal note:1998, c. 35, s. 42

 Subsection 165(2) of the English version of the Act is replaced by the following:

  • Meaning of “prefer”

    (2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator.

Marginal note:1998, c. 35, s. 42
  •  (1) Subsection 165.1(2) of the English version of the Act is replaced by the following:

    • Marginal note:Tenure of office and removal

      (2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

  • Marginal note:1998, c. 35, s. 42

    (2) Subsection 165.1(2.1) of the Act is replaced by the following:

    • Marginal note:Powers of inquiry committee

      (2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

      • (a) the attendance, swearing and examination of witnesses;

      • (b) the production and inspection of documents;

      • (c) the enforcement of its orders; and

      • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

  •  (1) Section 165.12 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Irregularity, informality or defect

      (1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.

  • Marginal note:1998, c. 35, s. 42

    (2) Subsection 165.12(2) of the French version of the Act is replaced by the following:

    • Marginal note:Retrait de l’accusation

      (2) Le directeur des poursuites militaires peut retirer une mise en accusation déjà prononcée; toutefois, le retrait de la mise en accusation après le début du procès en cour martiale est subordonné à l’autorisation de celle-ci.

  • (3) Section 165.12 of the Act is amended by adding the following after subsection (3):

    • Marginal note:Effect of not preferring charge

      (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.

 Section 165.19 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Summoning of accused person

    (1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

Marginal note:1998, c. 35, s. 42

 Sections 165.21 and 165.22 of the Act are replaced by the following:

Marginal note:Appointment
  • 165.21 (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.

  • Marginal note:Oath

    (2) Every military judge shall, before commencing the duties of office, take the following oath of office:

    I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

  • Marginal note:Removal for cause

    (3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Ceasing to hold office

    (4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

  • Marginal note:Resignation

    (5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

Reserve Force Military Judges

Marginal note:Panel established
  • 165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who

    • (a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;

    • (b) has been a military judge;

    • (c) has presided at a Standing Court Martial or a Special General Court Martial; or

    • (d) has been a judge advocate at a court martial.

  • Marginal note:Reserve force military judge

    (2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

  • Marginal note:Oath

    (3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:

    I .......... solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

Marginal note:Removal from panel
  • 165.221 (1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.

  • Marginal note:Automatic removal from panel

    (2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge attaining the age of 60 years.

  • Marginal note:Voluntary removal from panel

    (3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

Marginal note:Chief Military Judge
  • 165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

  • Marginal note:Training

    (2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.

Marginal note:Restriction on activities

165.223 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.

Duties and Immunity of Military Judges

 The Act is amended by adding the following after section 165.23:

Marginal note:Immunity

165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

Marginal note:1998, c. 35, s. 42

 Section 165.24 of the Act is replaced by the following:

Marginal note:Chief Military Judge
  • 165.24 (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.

  • Marginal note:Rank

    (2) The Chief Military Judge holds a rank that is not less than colonel.

Marginal note:1998, c. 35, s. 42

 Section 165.26 of the Act is replaced by the following:

Marginal note:Delegation

165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.

 The Act is amended by adding the following after section 165.27:

Marginal note:Deputy Chief Military Judge

165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.

Marginal note:Power, duties and functions

165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.

Marginal note:Rules of practice and procedure

165.3 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

  • (a) pre-trial conferences and other prelimi­nary proceedings;

  • (b) the making of applications under section 158.7;

  • (c) the bringing of persons before a military judge under section 159;

  • (d) the scheduling of trials by court martial;

  • (e) the minutes of proceedings of courts martial and other proceedings;

  • (f) documents, exhibits or other things connected with any proceeding, including public access to them; and

  • (g) any other aspects of practice and procedure that are prescribed in regulations made by the Governor in Council.

Military Judges Inquiry Committee

Marginal note:Composition of Committee
  • 165.31 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.

  • Marginal note:Chairperson

    (2) The Chief Justice shall appoint one of the judges to act as Chairperson.

  • Marginal note:Powers of inquiry committee

    (3) The inquiry committee has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

    • (a) the attendance, swearing and examination of witnesses;

    • (b) the production and inspection of documents;

    • (c) the enforcement of its orders; and

    • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

Marginal note:Inquiry required
  • 165.32 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

  • Marginal note:Other inquiry

    (2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.

  • Marginal note:Examination and recommendation

    (3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.

  • Marginal note:Notice to military judge

    (4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

  • Marginal note:Inquiry held in public or private

    (5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.

  • Marginal note:Counsel

    (6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.

  • Marginal note:Recommendation to the Governor in Council

    (7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,

    • (a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of

      • (i) infirmity,

      • (ii) having been guilty of misconduct,

      • (iii) having failed in the due execution of his or her judicial duties, or

      • (iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or

    • (b) the military judge does not satisfy the physical and medical fitness standards appli­cable to officers.

  • Marginal note:Report

    (8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

Military Judges Compensation Committee

Marginal note:Composition of Committee
  • 165.33 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

    • (a) one person nominated by the military judges;

    • (b) one person nominated by the Minister; and

    • (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

  • Marginal note: