National Defence Act

Marginal note:Recommendation of Review Board

• 202.121 (1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if

  • (a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and

  • (b) on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that

    • (i) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, and

    • (ii) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Notice

  (2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.

• Marginal note:Obligation of court martial

  (3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial, if the accused person is an officer or a non-commissioned member, or a Special General Court Martial in any other case, for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, such an inquiry if the court martial determines that it is appropriate.

• Marginal note:Inquiry may be conducted

  (4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that

  • (a) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; and

  • (b) the accused person does not pose a significant threat to the safety of the public.

• Marginal note:Power to order an assessment

  (5) Subject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.

• Marginal note:Assessment order

  (6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

• Marginal note:Stay

  (7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

  • (a) on the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;

  • (b) that the accused does not pose a significant threat to the safety of the public; and

  • (c) that a stay is in the interests of the proper administration of justice.

• Marginal note:Proper administration of justice

  (8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

  • (a) the nature and seriousness of the alleged offence;

  • (b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;

  • (c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and

  • (d) any other factor that the court martial considers relevant.

• Marginal note:Effect of stay

  (9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.