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  •  (1) The definition “Provost Marshal” in subsection 2(1) of the National Defence Act is repealed.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    (2) The definition “Grievance Board” in subsection 2(1) of the English version of the Act is repealed.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

 
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