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

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

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Witnesses at Courts Martial (continued)

Marginal note:Security of witnesses

  •  (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.

Evidence on Commission

Marginal note:Appointment of commissioner to take evidence

  •  (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martial

    • (a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

    • (b) who is absent from the country in which the trial is held; or

    • (c) whose attendance is not readily obtainable for a good and sufficient reason.

  • Marginal note:Admissibility of commission evidence

    (2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.

  • Marginal note:Power to require personal attendance of witness

    (3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

  • Marginal note:Representation, examination and cross-examination before commissioner

    (4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.

  • R.S., 1985, c. N-5, s. 184
  • 1998, c. 35, s. 45
  • 2013, c. 24, s. 53

Marginal note:Copy to accused

 The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).

  • R.S., c. N-4, s. 161

Objections

Marginal note:Objections

  •  (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.

  • Marginal note:Replacements

    (2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.

  • R.S., 1985, c. N-5, s. 186
  • 1998, c. 35, s. 46

Preliminary Proceedings

Marginal note:Preliminary proceedings

 At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.

  • R.S., 1985, c. N-5, s. 187
  • 1992, c. 16, s. 9
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 13

Amendment of Charges

Marginal note:Amendment if defence not prejudiced

  •  (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person’s defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.

  • Marginal note:Adjournment on amendment of charge

    (2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.

  • Marginal note:Minute of amendment

    (3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.

  • R.S., 1985, c. N-5, s. 188
  • 1998, c. 35, s. 46

Adjournments

Marginal note:Adjournment

 A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.

  • R.S., 1985, c. N-5, s. 189
  • 1998, c. 35, s. 46

Pleas

Marginal note:Pleas permitted

  •  (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.

  • (12) [Repealed, 2019, c. 15, s. 64]

Views

Marginal note:Authority for viewing

 A court martial may view any place, thing or person.

  • R.S., 1985, c. N-5, s. 190
  • 1991, c. 43, s. 17
  • 1992, c. 16, s. 10
  • 1998, c. 35, s. 46

Decisions of General Court Martial

Marginal note:Questions of law

 The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.

  • R.S., 1985, c. N-5, s. 191
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

 [Repealed, 2019, c. 15, s. 30]

Marginal note:Decision of panel

  •  (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

  • Marginal note:Decision

    (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

  • R.S., 1985, c. N-5, s. 192
  • 1992, c. 16, s. 11
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

Marginal note:Disagreement of panel

  •  (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.

  • Marginal note:Dissolution of court martial

    (2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.

  • 2008, c. 29, s. 14

Marginal note:Sentence

 The military judge presiding at a General Court Martial determines the sentence.

  • R.S., 1985, c. N-5, s. 193
  • 1998, c. 35, s. 46
  • 2008, c. 29, s. 14

Similar Offences

Marginal note:Similar offences may be considered in imposing sentence

  •  (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

  • Marginal note:Restriction

    (2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.

  • R.S., 1985, c. N-5, s. 194
  • 1998, c. 35, s. 46

Absconding Accused

Marginal note:Accused absconding during court martial

  •  (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.

  • Marginal note:Continuing or adjourning court martial

    (2) A military judge presiding at the court martial of an accused person who absconds may

    • (a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or

    • (b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.

  • Marginal note:Continuing court martial

    (3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.

  • Marginal note:Adverse inference

    (4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.

  • Marginal note:Accused not entitled to reopening

    (5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.

  • Marginal note:Counsel for accused person may continue to act

    (6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.

  • 2013, c. 24, s. 54
 
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