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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 7.1Sentencing (continued)

Restitution (continued)

Marginal note:Notice of order

 A court martial that makes a restitution order shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

Marginal note:Civil remedy not affected

 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

  • 2013, c. 24, s. 62

Passing of Sentence

Marginal note:Only one sentence to be passed

 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

  • 2013, c. 24, s. 62

DIVISION 8Provisions Applicable to Imprisonment and Detention

Computation of Term

Marginal note:Commencement of term

  •  (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the court martial pronounces sentence on the offender.

  • Marginal note:Time counted

    (2) The only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.

  • Marginal note:Special case

    (3) Where a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.

Service Prisons and Detention Barracks

Marginal note:Service prisons and detention barracks

  •  (1) Such places as are designated by the Minister for the purpose shall be service prisons and detention barracks and any hospital or other place for the reception of sick persons to which a person who is a service convict, service prisoner or service detainee has been admitted shall, in so far as relates to that person, be deemed to be part of the place to which that person has been committed.

  • Marginal note:Corrective disciplinary measures for service prisons and detention barracks

    (2) The nature of and the manner of imposing corrective measures for breach of the regulations, orders and rules applicable in respect of service prisons and detention barracks by a person committed thereto as the result of a sentence passed on that person, and the terms and conditions of remission for good conduct of any part of a punishment involving incarceration, shall be as prescribed in regulations made by the Governor in Council.

  • Marginal note:Limitations

    (3) Corrective measures referred to in subsection (2) shall not include whipping, paddling or any of the punishments referred to in paragraphs 139(1)(a) to (l) and shall not be so imposed as to increase the duration of any punishment involving a term of incarceration.

  • R.S., c. N-4, s. 177

 [Repealed, 1998, c. 35, s. 59]

Suspension of Imprisonment or Detention

Marginal note:Suspension of execution of punishment

  •  (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the court martial that imposes the punishment or, if the offender’s sentence is affirmed, is substituted or is imposed on appeal, by the Court Martial Appeal Court.

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

    (1.1) If the court martial or the Court Martial Appeal Court, as the case may be, makes a decision that the execution 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

    (1.2) The court martial or the Court Martial Appeal Court, as the case may be, shall, on request by a victim of the offence, cause a copy of the decision to be given to the victim.

  • Marginal note:Conditions

    (2) In suspending the execution of a punishment, the court martial or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

    • (a) to keep the peace and be of good behaviour;

    • (b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in paragraph 215.2(1)(a) or (b); and

    • (c) in the case of an offender who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

  • Marginal note:Other conditions

    (3) The court martial or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

Marginal note:Varying conditions

 On application by an offender, a condition imposed under subsection 215(3) or varied, added or substituted under this section or section 215.2 may be varied, or another condition may be substituted for that condition, by

  • (a) a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or

  • (b) a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.

Marginal note:Hearing into breach of conditions

  •  (1) 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 section 215 or varied, added or substituted under section 215.1 or this section may be made by

    • (a) a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or

    • (b) a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.

  • Marginal note:Revocation of suspension or changes to conditions

    (2) If a person referred to in paragraph (1)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

    • (a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

    • (b) vary any conditions imposed under subsection 215(3) or varied, added or substituted under section 215.1 or this section, or add or substitute other conditions, as the person sees fit.

Marginal note:Non-appearance of accused person

 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.

  • 2013, c. 24, s. 64

Marginal note:Definition of suspending authority

  •  (1) In this section and section 217, suspending authority means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.

  • Marginal note:Suspension of imprisonment or detention

    (2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.

  • Marginal note:Notification

    (2.1) A suspending authority that suspends a punishment shall provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.

  • Marginal note:Committal after suspension

    (2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.

  • Marginal note:Committing authority may postpone committal

    (3) Where an offender has been sentenced to imprisonment or detention and suspension of the punishment has been recommended, the authority empowered to commit the offender to a penitentiary, civil prison, service prison or detention barrack, as the case may be, may postpone committal until directions of a suspending authority have been obtained.

  • Marginal note:Mandatory suspension of detention

    (4) A suspending authority shall suspend a punishment of detention in the circumstances prescribed by the Governor in Council in regulations.

Marginal note:Effect of suspension before committal

  •  (1) Where a punishment is suspended before committal to undergo the punishment, the offender shall, if in custody, be discharged from custody and the term of the punishment shall not commence until the offender has been ordered to be committed to undergo that punishment.

  • Marginal note:Effect of suspension after committal

    (2) Where a punishment is suspended after committal to undergo the punishment, the offender shall be discharged from the place in which the offender is incarcerated and the currency of the punishment shall be arrested after the day of that discharge until the offender is again ordered to be committed to undergo that punishment.

  • 1998, c. 35, s. 60

Marginal note:Review and remission

  •  (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

  • Marginal note:Automatic remission of punishments

    (2) A punishment, except a punishment referred to in subsection (3), that has been suspended shall be deemed to be wholly remitted on the expiration of a period, commencing on the day the suspension was ordered, equal to the term of the punishment less any time during which the offender has been incarcerated following pronouncement of the sentence, unless the punishment has been put into execution prior to the expiration of that period.

  • Marginal note:Automatic remission of detention

    (3) A punishment of detention that has been suspended is deemed to be wholly remitted on the expiration of one year commencing on the day the suspension was ordered, unless the punishment has been put into execution prior to the expiration of that period.

  • R.S., 1985, c. N-5, s. 217
  • 1998, c. 35, s. 61
  • 2013, c. 24, s. 66

 [Repealed, 2013, c. 24, s. 67]

Committal to Imprisonment or Detention

Marginal note:Committing authority

  •  (1) The Minister may prescribe or appoint authorities for the purposes of this section and section 220 and, in this section and section 220, an authority prescribed or appointed under this subsection is referred to as a committing authority.

  • Marginal note:Warrants for committal

    (2) A committal order, in such form as is prescribed in regulations, made by a committing authority is a sufficient warrant for the committal of a service convict, service prisoner or service detainee to any lawful place of confinement.

  • Marginal note:Authority for transfer

    (3) A committing authority may, by warrant, order that a service convict, service prisoner or service detainee be transferred, from the place to which that convict, prisoner or detainee has been committed to undergo punishment, to any other place in which that punishment may lawfully be put into execution.

  • Marginal note:Custody pending delivery on committal and during transfer

    (4) A service convict, service prisoner or service detainee, until delivered to the place where that convict, prisoner or detainee is to undergo punishment or while being transferred from one such place to another such place, may be held in any place, either in service custody or in civil custody, or at one time in service custody and at another time in civil custody, as occasion may require, and may be transferred from place to place by any mode of conveyance, under such restraint as is necessary for the safe conduct of that convict, prisoner or detainee.

  • R.S., c. N-4, s. 187

Marginal note:Committal of service convicts

  •  (1) A service convict whose punishment of imprisonment for life or for two years or more is to be put into execution shall as soon as practicable be committed to a penitentiary to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service convict be committed to a service prison to undergo the punishment or any part of the punishment.

  • Marginal note:Committal when unexpired term less than two years

    (2) Where a committing authority orders the committal to a penitentiary of a service convict, part of whose punishment has been undergone in a service prison, the service convict may be so committed notwithstanding that the unexpired portion of the term of that punishment is less than two years.

  • Marginal note:Committal of service prisoners

    (3) A service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon as practicable be committed to a civil prison to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punishment or part thereof.

  • Marginal note:Committal of service detainees

    (4) A service detainee whose punishment of detention is to be put into execution shall as soon as practicable be committed to a detention barrack to undergo the punishment.

  • R.S., 1985, c. N-5, s. 220
  • 1998, c. 35, s. 62
 
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