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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 1Disciplinary Jurisdiction of the Canadian Forces (continued)

Application (continued)

Marginal note:Persons accompanying Canadian Forces

  •  (1) For the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the person

    • (a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations;

    • (b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;

    • (c) is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or

    • (d) is embarked on a vessel or aircraft of that unit or other element.

  • Marginal note:How persons accompanying Canadian Forces to be treated

    (2) Subject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.

  • Marginal note:Certificate entitling person to treatment as officer

    (3) A person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate.

  • R.S., 1985, c. N-5, s. 61
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Marginal note:Command

  •  (1) Every person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies.

  • Marginal note:Spies

    (2) Every person described in paragraph 60(1)(h) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time.

  • Marginal note:Released persons serving sentence

    (3) Every person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained.

  • R.S., c. N-4, s. 55

Marginal note:Persons under special engagement

  •  (1) Subject to subsection (2), every person mentioned in paragraph 60(1)(j) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.

  • Marginal note:Agreement entitling person to treatment as officer

    (2) Where the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.

  • Marginal note:Command where person under special engagement

    (3) Every person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving.

  • R.S., 1985, c. N-5, s. 63
  • R.S., 1985, c. 31 (1st Supp.), s. 60

 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 44]

Marginal note:Persons under command of officer deemed their superior officer

  •  (1) Every person subject to the Code of Service Discipline by virtue of paragraph 60(1)(f), (g), (i) or (j) shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person.

  • Marginal note:Prohibited interpretation

    (2) Nothing in subsection (1) shall be construed as requiring any person described therein to bear arms or to participate in any active operations against the enemy.

  • R.S., c. N-4, s. 55

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

  •  (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

    • (a) has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or

    • (b) has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.

  • Marginal note:Exception

    (2) Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.

  • Marginal note:Effect of other offences admitted at previous trial

    (3) A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

 Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.

  • R.S., c. N-4, s. 57

Place of Trial

Marginal note:No territorial limitation

 Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.

  • R.S., c. N-4, s. 58

Period of Liability

Marginal note:When person is liable

  •  (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

  • Marginal note:Sections 130 and 132

    (2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.

  • R.S., 1985, c. N-5, s. 69
  • 1990, c. 14, s. 7
  • 1991, c. 43, s. 12
  • 1993, c. 34, s. 92
  • 1998, c. 35, s. 21
  • 2008, c. 29, s. 2

Limitations with respect to Certain Offences

Marginal note:Offences not triable by courts martial

 A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:

  • (a) murder;

  • (b) manslaughter; or

  • (c) an offence under any of sections 280 to 283 of the Criminal Code.

  • (d) to (f) [Repealed, 1998, c. 35, s. 22]

Jurisdiction of Civil Courts

Marginal note:No interference with civil jurisdiction

 Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.

  • R.S., 1985, c. N-5, s. 71
  • R.S., 1985, c. 31 (1st Supp.), s. 46

DIVISION 1.1Declaration of Victims Rights

Interpretation

Marginal note:Definition of military justice system

 For the purposes of this Division, military justice system means

  • (a) the investigation of service offences, the processes for the laying and referral of charges of service offences and their prosecution;

  • (b) the process for the carrying out of punishments in relation to service offences, except in respect of any service prisoners and service convicts who have been committed to a penitentiary or civil prison; and

  • (c) the proceedings of a court martial or a Review Board, as defined in section 197, in respect of an accused person who is found unfit to stand trial or not responsible on account of mental disorder.

Rights

Information

Marginal note:General information

 Every victim has the right, on request, to information about

  • (a) the military justice system and the role of victims in it;

  • (b) the services and programs available to them as a victim; and

  • (c) their right to file a complaint for an infringement or denial of any of their rights under this Division.

Marginal note:Investigation and proceedings

 Every victim has the right, on request, to information about

  • (a) the status and outcome of the investigation into the service offence; and

  • (b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome.

Marginal note:Information about offender or accused

  •  (1) Every victim has the right, on request, to information about

    • (a) the offender while they are in a service prison or detention barrack;

    • (b) the release of the offender from a service prison or detention barrack;

    • (b.1) hearings held under section 202.161 to decide whether the accused person is a high-risk accused and the dispositions made at those hearings; and

    • (c) hearings held for the purpose of making dispositions under any of sections 201, 202 and 202.16 and the dispositions made at those hearings; and

    • (d) hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.

  • Marginal note:Disclosure of information

    (2) Information may be disclosed for the purposes of paragraphs (1)(a) and (b) subject to and in accordance with regulations made by the Governor in Council.

Protection

Marginal note:Security

 Every victim has the right to have their security considered by the appropriate authorities in the military justice system.

Marginal note:Protection from intimidation and retaliation

 Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the military justice system to protect the victim from intimidation and retaliation.

Marginal note:Privacy

 Every victim has the right to have their privacy considered by the appropriate authorities in the military justice system.

Marginal note:Identity protection

 Every victim has the right to request that their identity be protected if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence.

Marginal note:Testimonial aids

 Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the service offence.

Participation

Marginal note:Views to be considered

 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the military justice system that affect the victim’s rights under this Division and to have those views considered.

Marginal note:Victim impact statement

 Every victim has the right to present a victim impact statement to the appropriate authorities in the military justice system and to have it considered.

 
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