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

Full Document:  

Act current to 2022-11-16 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 3Arrest and Pre-Trial Custody (continued)

Action following Arrest

Marginal note:Release from custody

  •  (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

    • (a) the gravity of the offence alleged to have been committed;

    • (b) the need to establish the identity of the person under arrest;

    • (c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

    • (d) the need to ensure that the person under arrest will appear before a court martial or civil court to be dealt with according to law;

    • (e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

    • (f) the necessity to ensure the safety and security of the person under arrest, any victim of the offence, or any other person.

  • Marginal note:Retention in custody

    (2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

  • Marginal note:Duty to receive into service custody

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

  • Marginal note:Account in writing

    (4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

  • R.S., 1985, c. N-5, s. 158
  • R.S., 1985, c. 31 (1st Supp.), ss. 51, 60
  • 1998, c. 35, s. 42
  • 2013, c. 24, s. 29
  • 2019, c. 15, s. 18

Marginal note:Report of custody

  •  (1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

  • Marginal note:Contents

    (2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

  • Marginal note:Representations concerning release

    (3) Before the report of custody is delivered to the custody review officer,

    • (a) a copy of the report and the account in writing must be provided to the person in custody; and

    • (b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

  • Marginal note:Representations to be reduced to writing

    (4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

  • Marginal note:Accompanying documents

    (5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.

  • 1998, c. 35, s. 42

Initial Review

Marginal note:Review of report of custody

  •  (1) The custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.

  • Marginal note:Duty to release

    (2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1).

  • 1998, c. 35, s. 42

Marginal note:Continuing duty to release

 If, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody.

  • 1998, c. 35, s. 42

Marginal note:Duty to retain in custody if designated offence

 Notwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody.

  • 1998, c. 35, s. 42

Marginal note:Duty to review where charge not laid

 If a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody.

  • 1998, c. 35, s. 42

Marginal note:Release with or without conditions

  •  (1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

    • (a) remain under military authority;

    • (b) report at specified times to a specified military authority;

    • (c) remain within the confines of a specified defence establishment or at a location within a geographical area;

    • (d) abstain from communicating with any witness or specified person, or refrain from going to any specified place; and

    • (e) comply with such other reasonable conditions as are specified.

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

    (1.1) If the custody review officer directs that the person be released, with or without conditions, the custody review officer 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

    (1.2) The custody review officer shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

  • Marginal note:Review

    (2) A direction to release a person with or without conditions may, on application, be reviewed by

    • (a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

    • (b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

  • Marginal note:Powers

    (3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction that a custody review officer may make under subsection (1). If he or she makes a direction, subsections (1.1) and (1.2) apply with any necessary modifications.

Marginal note:Direction — no communication

 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.

Review by Military Judge

Marginal note:Review of directions

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

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

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

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

  • Marginal note:Conditions

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

  • Marginal note:Further applications

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

  • 2013, c. 24, s. 31

Marginal note:Hearing by military judge

  •  (1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

  • Marginal note:Applicable operational considerations

    (2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed.

  • R.S., 1985, c. N-5, s. 159
  • R.S., 1985, c. 31 (1st Supp.), s. 52
  • 1998, c. 35, s. 42

Marginal note:Onus on Canadian Forces

 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.

  • 1998, c. 35, s. 42

Marginal note:Justification for retention in custody

 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

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

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

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

Marginal note:Onus on person in custody

  •  (1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.

  • Marginal note:Release on undertaking

    (2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.

  • 1998, c. 35, s. 42

Marginal note:Direction — no communication

 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:Release with or without undertaking

  •  (1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.

  • Marginal note:Variation of undertaking

    (2) The undertaking under which a person is released may be varied

    • (a) by direction of a military judge on application with reasonable notice being given; or

    • (b) with the written consent of the person and the Director of Military Prosecutions.

  • 1998, c. 35, s. 42

Marginal note:Hearing may be adjourned

 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

  • 1998, c. 35, s. 42

Marginal note:Alternate means of hearing

  •  (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

  • Marginal note:Representations and factors to be considered

    (2) In deciding whether to make the direction, the military judge shall take into account

    • (a) the location of the person in custody;

    • (b) the gravity of the offence;

    • (c) the circumstances under which the unit or element detaining the person in custody is deployed;

    • (d) the availability of counsel for the Canadian Forces and the person in custody;

    • (e) the limitations of available telecommunications devices;

    • (f) the time required to bring the person in custody and the person’s counsel before the military judge; and

    • (g) any other matter that the military judge considers relevant.

  • 1998, c. 35, s. 42
 
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