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National Defence Act (R.S.C., 1985, c. N-5)

Full Document:  

Act current to 2022-07-25 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 2Service Offences and Punishments (continued)

Prohibition Orders (continued)

Marginal note:Forfeiture

  •  (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.

  • Marginal note:Disposal

    (2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.

  • 1995, c. 39, s. 176

Marginal note:Authorizations revoked or amended

 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

  • 1995, c. 39, s. 176

Marginal note:Return to owner

 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,

  • (a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and

  • (b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,

the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

  • 1995, c. 39, s. 176

Order to Abstain from Communicating

Marginal note:If injury or damage feared

  •  (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.

Intermittent Sentences

Marginal note:Imprisonment or detention

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

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

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

  • Marginal note:Application to vary intermittent sentence

    (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying to a military judge after giving notice to the Director of Military Prosecutions.

  • Marginal note:New sentence of imprisonment or detention

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

  • Marginal note:Hearing into breach of conditions

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

  • Marginal note:Consequences of breach

    (5) If a military judge determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the military judge may

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

    • (b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as the military judge sees fit.

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

 Where a person is under a sentence imposed by a court martial that includes a punishment involving incarceration and another court martial subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.

 [Repealed before coming into force, 2005, c. 22, s. 47]

Punishment for Certain Offences

Marginal note:Punishment for certain offences

  •  (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

  • Marginal note:Offender must be notified

    (2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.

  • 2001, c. 41, s. 99

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, 2013, c. 24, s. 25]

 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 47]

DIVISION 3Arrest and Pre-Trial Custody

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Division.

custody review officer

custody review officer, in respect of a person in custody, means

  • (a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

  • (b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer. (officier réviseur)

designated offence

designated offence means

  • (a) an offence that is punishable under section 130 that is

    • (i) listed in section 469 of the Criminal Code,

    • (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

    • (iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

  • (b) an offence under this Act where the minimum punishment is imprisonment for life;

  • (c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

  • (d) an offence under this Act that is a criminal organization offence; or

  • (e) an offence under this Act that is a terrorism offence. (infraction désignée)

  • R.S., 1985, c. N-5, s. 153
  • R.S., 1985, c. 31 (1st Supp.), s. 47
  • 1998, c. 35, s. 40
  • 2001, c. 41, s. 100
  • 2012, c. 1, s. 48(E)
  • 2013, c. 24, s. 26(F)

Authority to Arrest

Marginal note:General authority

  •  (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

  • Marginal note:Reasonably necessary force

    (2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

  • R.S., 1985, c. N-5, s. 154
  • R.S., 1985, c. 31 (1st Supp.), s. 48
  • 1998, c. 35, s. 92

Marginal note:Powers of officers

  •  (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

    • (a) any non-commissioned member;

    • (b) any officer of equal or lower rank; and

    • (c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

  • Marginal note:Powers of non-commissioned members

    (2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

    • (a) any non-commissioned member of lower rank; and

    • (b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

  • Marginal note:Limitations on power of arrest

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

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

      • (i) establish the person’s identity,

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

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

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

  • Marginal note:Arrest of persons other than officers or non-commissioned members

    (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.

  • R.S., 1985, c. N-5, s. 155
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 2013, c. 24, s. 27
  • 2019, c. 15, s. 63

Marginal note:Powers of military police

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

    • (a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

    • (b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

  • Marginal note:Arrest without warrant — limitations

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

  • R.S., 1985, c. N-5, s. 156
  • R.S., 1985, c. 31 (1st Supp.), ss. 49, 60
  • 1998, c. 35, s. 41
  • 2013, c. 24, s. 28

Marginal note:Issue of warrants

  •  (1) Subject to subsection (2), every commanding officer, and every officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing, may by a warrant under his or her hand authorize any person to arrest any person subject to the Code of Service Discipline who

    • (a) has committed a service offence;

    • (b) is believed on reasonable grounds to have committed a service offence; or

    • (c) is charged under this Act with having committed a service offence.

  • Marginal note:Limitation

    (2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

  • Marginal note:Limitation

    (2.1) An officer authorized to issue a warrant under this section shall not issue a warrant for the arrest of any person who is a member of, serving with, or attached or seconded to the same unit of the Canadian Forces as the officer.

  • Marginal note:Contents of warrants

    (3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

  • Marginal note:Saving provision

    (4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.

 
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