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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)

Pronouncement of Findings and Sentence

Marginal note:Manner and effective date of pronouncement

 The finding and sentence of a court martial shall, at the conclusion of the trial of the offender so sentenced, be pronounced in open court to the offender, who shall be under the sentence as of the date of the pronouncement thereof.

  • R.S., c. N-4, s. 170

Death or Incapacity

Marginal note:Death or incapacity to continue of judge

  •  (1) Where the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the “replacement judge”, assigned by the Chief Military Judge.

  • Marginal note:When finding not pronounced

    (2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge

    • (a) in the case of a General Court Martial, may order that the court martial

      • (i) continue from the stage at which it was when it was deemed to be adjourned, or

      • (ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and

    • (b) in the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced.

  • Marginal note:Adjudications and evidence

    (3) In the case of a court martial continued under subparagraph (2)(a)(i),

    • (a) if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; and

    • (b) if any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.

  • Marginal note:When finding pronounced

    (4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.

  • R.S., 1985, c. N-5, s. 196
  • 1998, c. 35, s. 47
  • 2008, c. 29, s. 15

Marginal note:Dissolution

  •  (1) If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.

  • Marginal note:Illness of accused

    (2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.

  • Marginal note:Unfit to stand trial

    (3) Where a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.

  • Marginal note:Effect of dissolution

    (4) Where a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.

  • 1998, c. 35, s. 47
  • 2008, c. 29, s. 16

DIVISION 6.1Forensic DNA Analysis

Marginal note:Definitions

 The definitions in this section apply in this Division.

Commissioner

Commissioner means the Commissioner of the Royal Canadian Mounted Police. (commissaire)

designated offence

designated offence means a primary designated offence or a secondary designated offence. (infraction désignée)

DNA

DNA means deoxyribonucleic acid. (ADN)

DNA profile

DNA profile means the results of forensic DNA analysis. (profil d’identification génétique)

forensic DNA analysis

forensic DNA analysis

  • (a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and

  • (b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance. (analyse génétique)

peace officer

peace officer means

  • (a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or

  • (b) an officer or a non-commissioned member of the Canadian Forces who is

    • (i) a member of the military police, or

    • (ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer. (agent de la paix)

prescribed form

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

primary designated offence

primary designated offence means

  • (a) an offence within the meaning of paragraphs (a) and (c.02) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

  • (a.1) an offence within the meaning of any of paragraphs (a.1) to (c.01), (c.03) and (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and

  • (b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.03) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130. (infraction primaire)

secondary designated offence

secondary designated offence means

  • (a) an offence within the meaning of any of paragraphs (a) to (d.2) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

  • (b) an offence under any of the following provisions of this Act:

    • (i) paragraph 77(a) (violence to person bringing materiel to forces),

    • (ii) section 79 (mutiny with violence),

    • (iii) section 84 (striking a superior officer),

    • (iv) paragraph 87(b) (violence while in custody),

    • (v) section 95 (striking a subordinate),

    • (vi) paragraph 107(a) (endangering a person on an aircraft), or

    • (vii) section 127 (handling of dangerous substances); and

  • (c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b). (infraction secondaire)

  • 2000, c. 10, s. 1
  • 2005, c. 25, s. 23
  • 2007, c. 22, ss. 35, 48
  • 2010, c. 17, s. 46
  • 2013, c. 24, s. 55
  • 2014, c. 25, s. 36
  • 2018, c. 21, s. 44

Marginal note:Information for warrant to take bodily substances for forensic DNA analysis

  •  (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of military justice to do so and that there are reasonable grounds to believe

    • (a) that a designated offence has been committed;

    • (b) that a bodily substance has been found or obtained

      • (i) at the place where the offence was committed,

      • (ii) on or within the body of the victim of the offence,

      • (iii) on anything worn or carried by the victim at the time the offence was committed, or

      • (iv) on or within the body of any person or thing or at any place associated with the commission of the offence;

    • (c) that the person subject to the Code of Service Discipline was a party to the offence; and

    • (d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

  • Marginal note:Criteria

    (2) In considering whether to issue the warrant, the military judge shall have regard to all relevant matters, including

    • (a) the nature of the offence and the circumstances surrounding its commission; and

    • (b) whether there is

      • (i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

      • (ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

  • 2000, c. 10, s. 1
  • 2013, c. 24, s. 56

Marginal note:Telewarrants

  •  (1) If a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.

  • Marginal note:Contents of information

    (2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

    • (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

    • (b) a statement as to any prior application for a warrant under this section.

  • Marginal note:Oath in writing

    (3) If the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.

  • Marginal note:Information filed with Court Martial Administrator

    (4) The military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.

  • Marginal note:Formalities respecting warrant and facsimiles

    (5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

    • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

    • (b) the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; and

    • (c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

  • Marginal note:Issuance of warrant — telecommunication in written form

    (6) When a military judge issues a warrant by a means of telecommunication in written form,

    • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

    • (b) the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);

    • (c) the peace officer shall procure another facsimile of the warrant; and

    • (d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

  • Marginal note:Proof of authorization

    (7) In any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.

  • Marginal note:Duplicates and facsimiles acceptable

    (8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

  • 2000, c. 10, s. 1

Marginal note:Order — primary designated offences

  •  (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition primary designated offence in section 196.11 when the person is sentenced.

  • Marginal note:Order — primary designated offences

    (2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) or (b) of the definition primary designated offence in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.

  • Marginal note:Order — persons found not responsible and secondary designated offences

    (3) A court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation to

    • (a) a person who is found not responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or

    • (b) a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced.

    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:Order to offender

    (4) When a court martial makes an order authorizing the taking of samples of bodily substances, it may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.

 
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