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

Preliminary Proceedings

Marginal note:Preliminary proceedings

187 At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.

Amendment of Charges

Marginal note:Amendment if defence not prejudiced

• 188 (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person’s defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.

• Marginal note:Adjournment on amendment of charge

  (2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.

• Marginal note:Minute of amendment

  (3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.

Adjournments

Marginal note:Adjournment

• 189 (1) A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.

• Marginal note:Considerations

  (2) In deciding whether to adjourn the proceedings, the court martial shall consider the interests of military justice, including the interests of any victim of the service offence in question if information related to the victim’s interests is readily available.

Pleas

Marginal note:Pleas permitted

• 189.1 (1) An accused person who makes an application under subsection (2) or who, after the commencement of the trial, is called on to plead may plead guilty or not guilty, or any other plea authorized by regulations made by the Governor in Council.

• Marginal note:Plea of guilty

  (2) At any time after a court martial is convened but before the commencement of the trial, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.

• Marginal note:Conditions for accepting guilty plea

  (3) The military judge may accept a plea of guilty only if he or she is satisfied that

  • (a) the accused person is making the plea voluntarily; and

  • (b) the accused person

    • (i) understands that the plea is an admission of the essential elements of the service offence,

    • (ii) understands the nature and consequences of the plea, and

    • (iii) understands that the military judge is not bound by any agreement made between the accused person and the prosecutor.

• Marginal note:Validity of plea

  (4) The failure of the military judge to fully inquire whether the conditions set out in subsection (3) are met does not affect the validity of the plea.

• Marginal note:Refusal to plead

  (5) If an accused person refuses to plead or does not answer directly, he or she is deemed to have made a plea of not guilty.

• Marginal note:Allowing time

  (6) An accused person is not entitled as of right to have their trial postponed, but the military judge may, if the military judge considers that the accused person should be allowed further time to plead or prepare for their defence or for any other reason, adjourn the trial to a later time, on any terms that the military judge considers appropriate.

• Marginal note:Included or other offence

  (7) Despite any other provision of this Act, if an accused person pleads not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence, the military judge may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the military judge shall find the accused person not guilty of the offence charged and find him or her guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court martial.

• Marginal note:Inquiry of court — serious personal injury offence

  (8) If the accused person is charged with a service offence that is a serious personal injury offence and the accused person and the prosecutor have entered into an agreement under which the accused person will enter a plea of guilty of the service offence charged — or a plea of not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence — the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether reasonable steps were taken to inform the victims of the agreement.

• Marginal note:Inquiry of court — certain offences

  (9) If the accused person is charged with a serious offence that is not a serious personal injury offence and the accused person and the prosecutor have entered into an agreement referred to in subsection (8), the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into and, if so, whether reasonable steps were taken to inform that victim of the agreement.

• Marginal note:Duty to inform

  (10) If subsection (8) or (9) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.

• Marginal note:Validity of plea

  (11) Neither the failure of the military judge to inquire of the prosecutor as required under subsection (8) or (9) nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement affects the validity of the plea.

• (12) [Repealed, 2019, c. 15, s. 64]

Views

Marginal note:Authority for viewing

190 A court martial may view any place, thing or person.

Decisions of General Court Martial

Marginal note:Questions of law

191 The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.

191.1 [Repealed, 2019, c. 15, s. 30]

Marginal note:Decision of panel

• 192 (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

• Marginal note:Decision

  (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

Marginal note:Disagreement of panel

• 192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.

• Marginal note:Dissolution of court martial

  (2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.

Marginal note:Sentence

193 The military judge presiding at a General Court Martial determines the sentence.

Similar Offences

Marginal note:Similar offences may be considered in imposing sentence

• 194 (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

• Marginal note:Restriction

  (2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.

Absconding Accused

Marginal note:Accused absconding during court martial

• 194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.

• Marginal note:Continuing or adjourning court martial

  (2) A military judge presiding at the court martial of an accused person who absconds may

  • (a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or

  • (b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.

• Marginal note:Continuing court martial

  (3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.

• Marginal note:Adverse inference

  (4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.

• Marginal note:Accused not entitled to reopening

  (5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.

• Marginal note:Counsel for accused person may continue to act

  (6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.

Pronouncement of Findings and Sentence

Marginal note:Manner and effective date of pronouncement

195 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.

Death or Incapacity

Marginal note:Death or incapacity to continue of judge

• 196 (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.

Marginal note:Dissolution

• 196.1 (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.

Division 6.01Unreasonable Delay

Definition

Marginal note:Definition of unreasonable delay

196.101 In this Division, unreasonable delay means a delay that exceeds the reasonable time for a person charged with an offence to be tried in accordance with paragraph 11(b) of the Canadian Charter of Rights and Freedoms.