Définitions et interprétation

• (a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a court martial or any civil court, and

Purpose

Marginal note:Purpose

• 55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.

• Marginal note:Clarification

  (2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.

Marginal note:Offences not triable by courts martial

70 A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:

DIVISION 1.1Declaration of Victims Rights

Interpretation

Marginal note:Definition of military justice system

71.01 For the purposes 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 in relation to service offences, except in respect of any service prisoners and service convicts who have been committed to a penitentiary or civil prison; and

• (c) the proceedings of a court martial or a Review Board, as defined in section 197, in respect of an accused person who is found unfit to stand trial or not responsible on account of mental disorder.

Rights

Information

Marginal note: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.

Marginal note: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.

Marginal note:Information about offender or accused

• 71.04 (1) Every victim has the right, on request, to information about

  • (a) the offender while they are in a service prison or detention barrack;

  • (b) the release of the offender from a service prison or detention barrack;

  • (c) 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

  • (d) hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.

• Marginal note:Disclosure of information

  (2) Information may be disclosed for the purposes of paragraphs (1)(a) and (b) subject to and in accordance with regulations made by the Governor in Council.

Protection

Marginal note:Security

71.05 Every victim has the right to have their security considered by the appropriate authorities in the military justice system.

Marginal note: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.

Marginal note:Privacy

71.07 Every victim has the right to have their privacy considered by the appropriate authorities in the military justice system.

Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note: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

Marginal note:Restitution order

71.12 Every victim has the right to have the court martial consider making a restitution order against the offender.

Marginal note: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

Marginal note: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 in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a penitentiary or civil prison; 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.

• Marginal note: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.

Marginal note:Exercise of rights

• 71.15 (1) The rights of victims under this Division are to be exercised through the mechanisms provided by law.

• Marginal note: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.

Marginal note: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, who satisfies the conditions established in regulations made by the Governor in Council, to be a liaison officer to assist the victim as provided for in subsection (3). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim to be their liaison officer.

• Marginal note: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.

• Marginal note:Role of victim’s liaison officer

  (3) 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.

Marginal note: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 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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Definition of tribunal

• 118 (1) For the purposes of this section and section 119, tribunal includes a court martial, a military judge, an officer conducting a summary hearing, 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:Failure to appear or attend

118.1 Every person who, being duly summoned or ordered to appear before a court martial or a military judge, as an accused, or before an officer conducting a summary hearing, as a person charged with having committed a service infraction, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Special finding of guilty

138 A court martial may, instead of making a finding of not guilty, make a special finding of guilty if it concludes that

• (a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged; and

• (b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in their defence.

If the court martial makes a special finding of guilty, it shall state the differences between the facts proved and the facts alleged in the statement of particulars.

Marginal note:Dismissal with disgrace

• 141 (1) If a court martial imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, it may, in addition, despite any other provision of this Division, impose a punishment of imprisonment for less than two years.

• Marginal note:Variation of terms of payment

  (3) The terms of payment of a fine may be varied by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.

Order to Abstain from Communicating

Marginal note: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.

• Marginal note:Parties to appear

  (2) The military judge who receives the information shall cause the parties to appear before the military judge, either in person or otherwise.

• Marginal note: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 condition specified in the order that the military judge considers necessary.

• Marginal note: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).

• Marginal note: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.

Marginal note:Direction — no communication

158.61 If a custody review officer directs that a person be retained in custody, the custody review officer 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.

• (a) custody is necessary to ensure the person’s attendance before a court martial or civil court to be dealt with according to law;

Marginal note:Direction — no communication

159.31 If a military judge directs that a person be retained in custody, the military judge 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.

• Marginal note:Consideration of victim’s safety and security

  (2) If the military judge directs that a person be released, with or without conditions, the military judge shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.

• Marginal note: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.

Marginal note:Definition of commanding officer

160 In this Division, commanding officer, in respect of a person charged with having committed a service offence or a service 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

Marginal note:Laying of charge

• 161 (1) Proceedings against a person who is alleged to have committed a service offence or a service infraction are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

• Marginal note:Duty to act expeditiously

  (2) If the person is retained in custody or released from custody with conditions, a charge must be laid as expeditiously as the circumstances permit.

Marginal note:Referral of charge — service offence

• 161.1 (1) After a person is charged with having committed a service offence, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.

• Marginal note:Referral of charge — service infraction

  (2) After a person is charged with having committed a service infraction, the charge must be referred, in accordance with regulations made by the Governor in Council, to an officer who is a commanding officer in respect of the person.

DIVISION 5Summary Hearings

Interpretation

Marginal note:Definitions

162.3 The following definitions apply in this Division.

commanding officer

commanding officer, in respect of a person charged with having committed a service infraction, means an officer who is a commanding officer as defined in section 160. (commandant)

delegated officer

delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. (officier délégué)

scale of sanctions

scale of sanctions means the scale of sanctions set out in subsection 162.7. (échelle des sanctions)

superior commander

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. (commandant supérieur)

Service Infractions

Marginal note:Summary hearing

162.4 Service infractions may be dealt with only by summary hearing.

Marginal note:Not offence

162.5 A service infraction is not an offence under this Act.

Marginal note:Prior trial — offence

• 162.6 (1) If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state.

• Marginal note:Prior summary hearing — service infraction

  (2) If a summary hearing has been conducted in respect of a service infraction that a person is alleged to have committed, the person may be charged, dealt with and tried in respect of an offence arising from the same facts, regardless of whether or not the person was found to have committed the service infraction.

• Marginal note:Answer or statement — restriction

  (3) No answer given or statement made by a person at their summary hearing may be used or be 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.

Marginal note:Scale of sanctions

162.7 The following sanctions may be imposed in respect of a service infraction, and each is a sanction less than every sanction preceding it:

• (a) reduction in rank;

• (b) severe reprimand;

• (c) reprimand;

• (d) deprivation of pay, and of any allowance prescribed in regulations made by the Governor in Council, for not more than 18 days; and

• (e) minor sanctions prescribed in regulations made by the Governor in Council.

Marginal note: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.

• Marginal note:Restrictions

  (2) The sanction of reduction in rank is not to involve

  • (a) reduction to a rank lower than that to which the person who has committed a service infraction can be reduced under regulations; and

  • (b) in the case of a commissioned officer, reduction to a rank lower than commissioned rank.

Marginal note:Objectives of sanctions

162.9 The imposition of sanctions is intended to achieve 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 service infractions;

• (e) to assist in rehabilitating persons who have committed service infractions;

• (f) to promote a sense of responsibility in persons who have committed service infractions.

Marginal note:Fundamental principle

162.91 Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it.

Marginal note:Other principles

162.92 Sanctions must be imposed in accordance with the following other principles:

• (a) a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that

  • (i) the person, in committing the service infraction, abused their rank or other position of trust or authority,

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

  • (iii) the commission of the service 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 service infractions committed in similar circumstances; and

• (c) a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces.

Marginal note:Consideration of indirect consequences

162.93 In determining the sanction to be imposed against a person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the finding that the person committed a service infraction, or of the sanction.

Summary Hearings

Marginal note:Delegation

162.94 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command.

Marginal note:Commanding officer’s obligation

162.95 A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer.

Marginal note:Jurisdiction

• 163 (1) A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied:

  • (a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;

  • (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 charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings; and

  • (d) having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing.

• Marginal note:Prohibition on conducting hearing

  (2) A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she

  • (a) carried out or directly supervised the investigation of the service 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 service infraction; or

  • (c) laid the charge or caused it to be laid.

  However, he or she may conduct such a hearing if, having regard to all the circumstances, it is not practicable for any other superior commander, commanding officer or delegated officer to conduct the hearing.

Marginal note:Sanctions imposed by superior commander

• 163.1 (1) A superior commander who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in section 162.7.

• Marginal note:Sanctions imposed by commanding officer

  (2) A commanding officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the sanctions referred to in paragraphs 162.7(c) to (e).

• Marginal note:Sanctions imposed by delegated officer

  (3) A delegated officer who finds on a balance of probabilities, at a summary hearing, that a person has committed one or more service infractions, may impose one or more of the following sanctions:

  • (a) a sanction referred to in paragraph 162.7(d) for not more than seven days;

  • (b) minor sanctions referred to in paragraph 162.7(e).

Marginal note:Obligation after referral

163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163,

• (a) conduct a summary hearing in respect of the charge;

• (b) decide not to proceed with the charge if, in his or her opinion, it should not be proceeded with; or

• (c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer.

Marginal note:Subsequent summary hearing proceedings not precluded

163.3 A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time.

Marginal note:Limitation period

163.4 A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed.

Marginal note:No territorial limitation

163.5 Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada.

Review Authorities

Marginal note:Chief of the Defence Staff and other military authorities

• 163.6 (1) The review authorities in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing are the Chief of the Defence Staff and any other military authorities that are prescribed by the Governor in Council in regulations.

• Marginal note:When authorities may act

  (2) A review authority in respect of a finding that a person has committed a service infraction and in respect of a sanction imposed by an officer who conducted a summary hearing may act on its own initiative or on application, made in accordance with regulations made by the Governor in Council, of the person found to have committed the service infraction.

Quashing of Findings

Marginal note:Authority to quash

• 163.7 (1) A review authority may quash a finding, by an officer who conducted a summary hearing, that a person has committed a service infraction.

• Marginal note:Effect of complete quashing

  (2) If a finding that a person has committed a service infraction is quashed and no other such finding was made at the summary hearing, every sanction imposed as a result of the quashed finding is also quashed and a new summary hearing may be held in relation to the service infraction as if no previous summary hearing had been held.

• Marginal note:Effect of partial quashing

  (3) In the case where more than one finding has been made that a person has committed a service infraction and a review authority quashes one or more but not all of them, if a sanction imposed is in excess of any that may be imposed in respect of the remaining findings or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Findings

Marginal note:Substitution of invalid or unsubstantiated findings

• 163.8 (1) A review authority may substitute a new finding for any finding that a person has committed a service infraction that was invalidly made or that cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears to the review authority that the officer who conducted the summary hearing was satisfied of the facts that establish the service infraction specified or involved in the new finding.

• Marginal note:Effect on sanction

  (2) If a new finding is substituted and a sanction imposed in respect of the original finding is in excess of a sanction that may be imposed in respect of the new finding or is, in the opinion of the review authority, unduly severe, the review authority shall substitute for that sanction any new sanction or sanctions that it considers appropriate.

Substitution of Sanctions

Marginal note:Authority to substitute

• 163.9 (1) A review authority may substitute for any invalid sanction imposed by an officer who conducted a summary hearing any new sanction or sanctions that it considers appropriate.

• Marginal note:Condition applicable to new sanction

  (2) If a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than that other sanction.

Commutation, Mitigation and Remission of Sanctions

Marginal note:Authority to commute, mitigate or remit sanctions

• 163.91 (1) A review authority may commute, mitigate or remit any or all of the sanctions imposed by an officer who conducted a summary hearing.

• Marginal note:Definitions

  (2) The following definitions apply in subsection (1).

  commute

  commute means to replace a sanction with another sanction that is lower in the scale of sanctions. (commuer)

  mitigate

  mitigate means to impose a lesser amount of the same sanction. (mitiger)

  remit

  remit means to exempt a person from the requirement to undergo the whole or any part of a sanction. (remettre)

Marginal note: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 the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

• 180 (1) Unless this Act provides otherwise, court martial proceedings and proceedings before a military judge under any of sections 147.6, 159, 187 and 248.81 must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.

• Marginal note: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 the military judges’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.

• Marginal note:Factors to be considered

  (3) In determining whether making the order 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.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

• Marginal note: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 or 155, 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.

• Marginal note:Witnesses

  (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.

• Marginal note:Clearing court

  (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.

Production of certain records

Marginal note:Definition of record

180.01 For the purposes of sections 180.02 to 180.08, 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 of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.

Marginal note: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, 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 involved a violation of the complainant’s sexual integrity and would be an offence referred to in paragraph (a) if it had occurred on or after that day.

• Marginal note:Application of provisions

  (2) Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record relating to the complainant or a witness 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, as the case may be, has expressly waived the application of those sections.

• Marginal note: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 or control, but, in doing so, the prosecutor shall not disclose the record’s contents.

Marginal note: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, to the military judge assigned to preside at the court martial.

• Marginal note: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.

• Marginal note: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 the complaint or to the activity that forms the subject matter of the charge against the accused person.

• Marginal note: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 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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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 a 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.

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, 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.

Marginal note:Review of record by military judge

• 180.06 (1) If the military judge has ordered the production of the record or a part of the record for review, the military judge shall review it in the absence of the parties to determine whether the record or the part of the record should be produced to the accused person.

• Marginal note: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.

• Marginal note:Provisions re hearing

  (3) Subsections 180.04(2) to (4) apply in the case of a hearing held under subsection (2).

Marginal note:Order to produce

• 180.07 (1) If the military judge is satisfied that the record or a 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, the military judge may order that the record or the part of the record, as the case may be, be produced to the accused person, subject to any conditions that may be imposed under subsection (3).

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, 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.

• Marginal note:Conditions on production

  (3) The military judge who orders the production of the record or a part of the record to the accused person, 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 only the number of copies specified by the military judge 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.

• Marginal note:Copy to prosecutor

  (4) If the military judge orders the production of the record or a part of the record to the accused person, the military judge shall direct that a copy of the record or the part of the record, as the case may be, be provided to the prosecutor, unless the military judge determines that it is not in the interests of military justice to do so.

• Marginal note:Record not used in other proceedings

  (5) The record or the 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.

• Marginal note:Retention of record by court

  (6) If the military judge refuses to order the production of the record or a part of the record to the accused person, the record or the part of the record, as the case may be, 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 the part of the record must be returned to the person lawfully entitled to possession or control of it.

Marginal note:Reasons for decision

180.08 The military judge shall provide reasons in writing for ordering or not ordering the production of the record or a part of the record under subsection 180.05(1) or 180.07(1).

Marginal note:Support person — witnesses under 18 or with disability

• 183.1 (1) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Other witnesses

  (2) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the military judge shall consider

  • (a) the witness’s age;

  • (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:No adverse inference

  (6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (2).

Marginal note:Testimony outside courtroom — witnesses under 18 or with disability

• 183.2 (1) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Other witnesses

  (2) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the military judge shall consider

  • (a) the witness’s age;

  • (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 as defined in that section;

  • (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.

• Marginal note: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.

• Marginal note: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, if a General Court Martial has been convened, its panel 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.

• Marginal note:No adverse inference

  (6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (2).

Marginal note:Accused not to cross-examine witnesses under 18

• 183.3 (1) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Accused not to cross-examine complainant — certain offences

  (2) In 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, a 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.

• Marginal note:Other witnesses

  (3) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note:Factors to be considered

  (4) In determining whether to make an order under subsection (3), the military judge shall consider

  • (a) the witness’s age;

  • (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.

• Marginal note:No adverse inference

  (5) No adverse inference may be drawn from the fact that counsel is, or is not, provided under this section.

Marginal note:Non-disclosure of witness’s identity

• 183.4 (1) In proceedings against an accused person in respect of a service offence, a 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.

• Marginal note: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.

• Marginal note: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 as defined in that section;

  • (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.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note: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, if the proceedings are 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, 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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 their right to make an application for the order; and

  • (b) on application of the victim or the prosecutor, make the order.

• Marginal note: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.

• Marginal note:Limitation

  (6) An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.

Marginal note: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.

• Marginal note: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 the military justice system participant themself, 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 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.

• Marginal note:Offences

  (3) For the purpose of subsection (2), an offence 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).

• Marginal note:Limitation

  (4) An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.

• Marginal note:Making of application

  (5) An application for an order under this section must be made in accordance with regulations made by the Governor in Council.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Conditions

  (9) An order made under this section may be subject to any conditions that the military judge thinks fit.

• Marginal note: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 the application for the order;

  • (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.

Marginal note:Security of witnesses

• 183.7 (1) In proceedings against an accused person, a 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 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.

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, the military judge shall consider

  • (a) the witness’s age;

  • (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.

• Marginal note:No adverse inference

  (3) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Pleas

Marginal note: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.

• Marginal note:Plea of guilty

  (2) At any time after a 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Allowing time

  (6) An accused person is not entitled as of right to have their trial postponed, but the military judge may, if the military judge 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 appropriate.

• Marginal note:Included or other offence

  (7) Despite any other provision of this Act, if an accused person 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 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that such an order would have on the person’s privacy and security and shall give reasons for the decision.

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay, on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

Marginal note:Court martial may suspend

• 215 (1) If an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the court martial that imposed the punishment.

• Marginal note:Consideration of victim’s safety and security

  (2) If the court martial 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.

• Marginal note:Copy to victim

  (3) The court martial shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.

• Marginal note:Jurisdiction and discretion of Parole Board of Canada

  (2) If the punishment of a service convict undergoing punishment in a penitentiary or of a service prisoner undergoing punishment in a civil prison is not suspended under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant, or revoke the parole of that convict or prisoner.

• (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).

• (i) the legality of a decision to make an order under subsection 180.05(1) or 180.07(1).

Marginal note:Powers to suspend new punishment

242 If a punishment included in a sentence has been dealt with under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.

• Marginal note:Consideration of victim’s safety and security

  (2) If the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, directs that the person be released, the court martial, military judge or judge shall include in the direction a statement that the safety and security of every victim of the alleged offence has been considered.

• Marginal note:Copy to victim

  (3) The court martial, military judge or judge, as the case may be, shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

DIVISION 11Petition for New Trial

Marginal note:Right to petition on new evidence

• 249 (1) Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.

• Marginal note:Reference to CMAC for determination

  (2) The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.

• Marginal note:Reference to CMAC for opinion

  (3) The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion, and that Court shall furnish its opinion accordingly.

• Marginal note:New trial

  (4) If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.

Marginal note:Royal prerogative

249.1 Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.

Marginal note:Force and effect

249.24 If a new punishment is substituted for a punishment imposed by a court martial, the new punishment has force and effect as if it had been imposed by the court martial in the first instance and the provisions of the Code of Service Discipline apply accordingly. However, if the new punishment involves incarceration, the term of the new punishment is to be reckoned from the date of substitution.

Marginal note:Oaths

251 At summary hearings and courts martial, and at proceedings before a military judge, board of inquiry or commissioner taking evidence under this Act, an oath must be taken by or administered to the following persons in the manner and in the forms prescribed in regulations made by the Governor in Council:

• (a) the officer conducting the summary hearing;

• (d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a court martial, a military judge, an officer conducting a summary hearing, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or

Marginal note: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.

• Marginal note:Offence

  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

• Marginal note:Definition of record

  (3) In this section, record has the same meaning as in section 180.01.

Marginal note:Failure to comply — orders under sections 183.5 and 183.6

• 303.1 (1) Every person who fails to comply with an order made under section 183.5 or 183.6 is guilty of an offence punishable on summary conviction.

• Marginal note:Application of order

  (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or military justice system participant whose identity is protected by the order.

• Marginal note:Military proceedings

  (5) In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.

• Marginal note:Military proceedings

  (2) In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.

• Marginal note:Special rules — hearing in National Capital Region

  (1.1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, the opportunity to make representations ex parte.

• Marginal note:Military proceedings

  (2) In the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.

• Marginal note:Military proceedings

  (3) In the case of proceedings under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.

• 10 A court martial or a military judge for the purposes of Part III of the National Defence Act

• Marginal note:Reference by Attorney General of Canada

  (2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a court martial and an officer conducting a summary hearing, as defined in subsection 2(1) of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination.

Marginal note:Constitutional questions

• 57 (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a court martial and an officer conducting a summary hearing, as defined in subsection 2(1) of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).

• Marginal note:Consent

  (4) Proceedings with respect to an offence referred to in subsection (1), other than proceedings before a court martial, as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada or the Deputy Attorney General of Canada and be conducted by the Attorney General of Canada or by counsel acting on behalf of the Attorney General of Canada.

Marginal note:Witnesses

8 The members of a service court of a visiting force, exercising jurisdiction by virtue of this Act, and witnesses appearing before such a service court have the same immunities and privileges as a court martial exercising jurisdiction under the National Defence Act and witnesses appearing before a court martial.

Marginal note:Consent of Attorney General of Canada

18 Proceedings for an offence under section 17 or under a regulation made under section 23, other than proceedings before a court martial as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada.

• Marginal note:National Defence Act

  (3) Subject to subsection (4), this Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.

• Marginal note:Application

  (4) This Act applies in respect of an offender who is convicted of a service offence, as defined in subsection 2(1) of the National Defence Act and who is committed to a penitentiary or a civil prison, as those terms are defined in that subsection.

• Marginal note: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.