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

Full Document:  

Act current to 2022-01-12 and last amended on 2019-08-01. Previous Versions

PART IIThe Canadian Forces (continued)

Canadian Forces Provost Marshal (continued)

Marginal note:Duties and functions

 The Provost Marshal’s responsibilities include

  • (a) investigations conducted by any unit or other element under his or her command;

  • (b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

  • (c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

  • (d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

  • 2013, c. 24, s. 4

Marginal note:General supervision

  •  (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

  • Marginal note:General instructions or guidelines

    (2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

  • Marginal note:Specific instructions or guidelines

    (3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

  • Marginal note:Availability to public

    (4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

  • Marginal note:Exception

    (5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

  • 2013, c. 24, s. 4

Marginal note:Annual report

 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.

  • 2013, c. 24, s. 4

Powers of Command

Marginal note:Authority of officers and non-commissioned members

 The authority and powers of command of officers and non-commissioned members shall be as prescribed in regulations.

  • R.S., 1985, c. N-5, s. 19
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Enrolment

Marginal note:Commissioned officers

  •  (1) Commissions of officers in the Canadian Forces shall be granted by Her Majesty during pleasure.

  • Marginal note:Officer cadets and non-commissioned members

    (2) Persons shall be enrolled as officer cadets or as non-commissioned members for indefinite or fixed periods of service as may be prescribed in regulations made by the Governor in Council.

  • Marginal note:When consent of parent or guardian required

    (3) A person under the age of eighteen years shall not be enrolled without the consent of one of the parents or of the guardian of that person.

  • R.S., 1985, c. N-5, s. 20
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Marginal note:Ranks of officers and non-commissioned members

  •  (1) For the purposes of this Act, the ranks of the officers and non-commissioned members of the Canadian Forces shall be as set out in the schedule.

  • Marginal note:Designation

    (2) A person holding a rank set out in the schedule shall use, or be referred to by, a designation of rank prescribed in regulations made by the Governor in Council but only in the circumstances prescribed in those regulations.

  • R.S., 1985, c. N-5, s. 21
  • R.S., 1985, c. 31 (1st Supp.), s. 60
  • 2014, c. 20, s. 169

Marginal note:Numbers in ranks and trade groups

 The maximum number of persons in each rank and trade group of the Canadian Forces shall be determined as prescribed in regulations made by the Governor in Council.

  • R.S., c. N-4, s. 22

Marginal note:Obligation to serve

  •  (1) The enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.

  • Marginal note:Oaths and declarations on enrolment

    (2) Oaths and declarations required on enrolment shall be taken and subscribed before commissioned officers or justices of the peace and shall be in such forms as may be prescribed in regulations.

  • R.S., c. N-4, s. 23

Marginal note:Consent to transfer

 No officer or non-commissioned member shall be transferred from the regular force to the reserve force or from the reserve force to the regular force unless the officer or non-commissioned member consents to the transfer.

  • R.S., 1985, c. N-5, s. 24
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Marginal note:Effect of receipt of pay if not enrolled

 A person who, although not enrolled or re-engaged for service, has received pay as an officer or non-commissioned member is, until the person claims to be released and is released, deemed to be an officer or non-commissioned member, as the case may be, of that component of the Canadian Forces through which the pay was received and to be subject to this Act as if the person were such an officer or non-commissioned member duly enrolled or re-engaged for service.

  • R.S., 1985, c. N-5, s. 25
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Marginal note:Effect of receipt of pay if irregularly enrolled

  •  (1) A person who, although erroneously or irregularly enrolled or re-engaged, has received pay as an officer or non-commissioned member of that component of the Canadian Forces in which the person was so enrolled or re-engaged, is deemed to be an officer or non-commissioned member, as the case may be, regularly enrolled or re-engaged, and is not, except as provided in subsection (2), entitled to be released on the ground of the error or irregularity.

  • Marginal note:Provision for release

    (2) A person who is, by virtue of subsection (1), deemed to be an officer or non-commissioned member and who claims to be released within three months after the date of commencement of the pay and establishes the error or irregularity referred to in that subsection shall, except when on active service or during an emergency, be released.

  • Marginal note:Method of release

    (3) The commanding officer of a person who claims to be released on the ground of not having been enrolled or re-engaged, or not having been regularly enrolled or re-engaged, shall forthwith forward the claim to the authority having power to effect the release and the person, if entitled to be released, shall be released with all convenient speed.

  • R.S., 1985, c. N-5, s. 26
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Attachment and Secondment

Marginal note:Manner and conditions of attachment and secondment

 An officer or non-commissioned member may be attached or seconded to another component of the Canadian Forces or to any department or agency of government, any public or private institution, private industry or any other body in such manner and under such conditions as are prescribed in any other Act or in regulations, but no officer or non-commissioned member of the reserve force who is not on active service shall be attached or seconded pursuant to this section unless the officer or non-commissioned member consents to the attachment or secondment.

  • R.S., 1985, c. N-5, s. 27
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Promotion

Marginal note:Authority to promote

 Subject to section 22 and to regulations, officers and non-commissioned members may be promoted by the Minister or by such authorities of the Canadian Forces as are prescribed in regulations made by the Governor in Council.

  • R.S., 1985, c. N-5, s. 28
  • R.S., 1985, c. 31 (1st Supp.), s. 60

Grievances

Marginal note:Right to grieve

  •  (1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

  • Marginal note:Exceptions

    (2) There is no right to grieve in respect of

    • (a) a decision of a court martial or the Court Martial Appeal Court;

    • (b) a decision of a board, commission, court or tribunal established other than under this Act; or

    • (c) a matter or case prescribed by the Governor in Council in regulations.

  • Marginal note:Military judges

    (2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.

  • Marginal note:Manner and conditions

    (3) A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

  • Marginal note:No penalty for grievance

    (4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

  • Marginal note:Correction of error

    (5) Notwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.

  • R.S., 1985, c. N-5, s. 29
  • R.S., 1985, c. 31 (1st Supp.), s. 43
  • 1998, c. 35, s. 7
  • 2013, c. 24, s. 5

Marginal note:Authorities for determination of grievances

  •  (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

  • Marginal note:Different authorities

    (2) The regulations may provide that different types of grievances may be considered and determined by different authorities.

  • 1998, c. 35, s. 7

Marginal note:Grievances submitted by military judges

 Despite subsection 29.1(1), a grievance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.

  • 2013, c. 24, s. 6

Marginal note:Final authority

 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

  • 1998, c. 35, s. 7
  • 2013, c. 24, s. 6

Marginal note:Referral to Grievances Committee

  •  (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.

  • Marginal note:Material to be provided to Board

    (2) When referring a grievance to the Grievances Committee, the Chief of the Defence Staff shall provide the Grievances Committee with a copy of

    • (a) the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

    • (b) any decision made by an authority in respect of the grievance; and

    • (c) any other information under the control of the Canadian Forces that is relevant to the grievance.

  • 1998, c. 35, s. 7
  • 2013, c. 24, ss. 7, 106(E)

Marginal note:Chief of the Defence Staff not bound

  •  (1) The Chief of the Defence Staff is not bound by any finding or recommendation of the Grievances Committee.

  • Marginal note:Reasons

    (2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if

    • (a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or

    • (b) the grievance was submitted by a military judge.

  • 1998, c. 35, s. 7
  • 2013, c. 24, ss. 8, 106(E)

Marginal note:Delegation

  •  (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that

    • (a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and

    • (b) a grievance submitted by a military judge may not be delegated.

  • Marginal note:Conflict of interest

    (2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.

  • Marginal note:Subdelegation

    (3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).

  • 1998, c. 35, s. 7
  • 2013, c. 24, s. 9

Marginal note:Decision is final

 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

  • 1998, c. 35, s. 7
  • 2002, c. 8, s. 182

Military Grievances External Review Committee

Marginal note:Grievances Committee

  •  (1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

  • Marginal note:Full- or part-time

    (2) The Chairperson and one Vice-Chairperson are each full-time members and the other members may be appointed as full-time or part-time members.

  • Marginal note:Tenure and removal

    (3) Each member holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.

  • Marginal note:Re-appointment

    (4) A member is eligible to be re-appointed on the expiry of a first or subsequent term of office.

  • Marginal note:Duties of full-time members

    (5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

  • Marginal note:Conflict of interest — part-time members

    (6) Part-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.

  • Marginal note:Remuneration

    (7) Members who are not officers or non-commissioned members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.

  • Marginal note:Travel and living expenses

    (8) Members who are not officers or non-commissioned members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.

  • Marginal note:Status of members

    (9) Members who are not officers or non-commissioned members are deemed

  • Marginal note:Secondment

    (10) An officer or a non-commissioned member who is appointed as a member of the Grievances Committee shall be seconded to the Grievances Committee in accordance with section 27.

  • Marginal note:Oath of office

    (11) Every member shall, before commencing the duties of office, take the following oath of office:

    I, blank line, do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

  • 1998, c. 35, s. 7
  • 2003, c. 22, ss. 224(E), 225(E)
  • 2013, c. 24, s. 11
 
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