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

Division 7.1Sentencing

Interpretation

Marginal note:Definitions

203. The following definitions apply in this Division.

“common-law partner”

« conjoint de fait »

“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

“victim”

« victime »

“victim”, in relation to an offence, means

• (a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

• (b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection 203.6(1), the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants.

Purposes and Principles of Sentencing by Service Tribunals

Marginal note:Fundamental purposes of sentencing

• 203.1 (1) The fundamental purposes of sentencing are

  • (a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

  • (b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

• Marginal note:Objectives

  (2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:

  • (a) to promote a habit of obedience to lawful commands and orders;

  • (b) to maintain public trust in the Canadian Forces as a disciplined armed force;

  • (c) to denounce unlawful conduct;

  • (d) to deter offenders and other persons from committing offences;

  • (e) to assist in rehabilitating offenders;

  • (f) to assist in reintegrating offenders into military service;

  • (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

  • (h) to provide reparations for harm done to victims or to the community; and

  • (i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

Marginal note:Fundamental principle of sentencing

203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Marginal note:Other sentencing principles

203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles:

• (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

  • (i) the offender, in committing the offence, abused their rank or other position of trust or authority,

  • (ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,

  • (iii) the offender, in committing the offence, abused their spouse or common-law partner,

  • (iv) the offender, in committing the offence, abused a person under the age of 18 years,

  • (v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

  • (vi) the offence was committed in a theatre of hostilities,

  • (vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

  • (viii) the offence was a terrorism offence;

• (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• (c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;

• (d) a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and

• (e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

Marginal note:Abuse of persons under age of 18

203.4 When a service tribunal imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Facts Relevant to the Determination of a Sentence

Marginal note:Disputed facts

• 203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

  • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

  • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

  • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

• Marginal note:Panel

  (2) In the case of a General Court Martial, the court martial

  • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

  • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

Victim Impact Statement

Marginal note:Duty to consider victim impact statement

• 203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

• Marginal note:Procedure

  (2) A victim’s statement must be prepared in the form, and submitted in accordance with the procedures, provided for by regulations made by the Governor in Council.

• Marginal note:Presentation of statement

  (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit them to read their statement or to present the statement in any other manner that the court martial considers appropriate.

• Marginal note:Evidence concerning victim admissible

  (4) Whether or not a statement has been prepared and submitted, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or if the offender should be discharged absolutely.

Marginal note:Inquiry by court martial

• 203.7 (1) As soon as feasible after a finding of guilty and in any event before imposing sentence, the court martial shall inquire of the prosecutor or any victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.

• Marginal note:Adjournment

  (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

Absolute Discharge

Marginal note:Absolute discharge

• 203.8 (1) If an accused person pleads guilty to or is found guilty of an offence — other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life — the service tribunal before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

• Marginal note:Effect of discharge

  (2) If a service tribunal directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

  • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

  • (b) in the case of a direction to discharge made by a court martial, the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

  • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

• Marginal note:References to section 730 of Criminal Code

  (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

Restitution

Marginal note:Restitution order

203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

• (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

• (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

• (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

Marginal note:Enforcing restitution order

203.91 If an amount that is ordered to be paid as restitution is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Marginal note:Moneys found on offender

203.92 All or any part of an amount that is ordered to be paid as restitution may be taken out of moneys found in the offender’s possession and seized at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, directs it to be taken.

Marginal note:Notice of orders of restitution

203.93 A court martial that makes an order of restitution shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

Marginal note:Civil remedy not affected

203.94 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

Passing of Sentence

Marginal note:Only one sentence to be passed

203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.