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

Marginal note:Where Review Board or chairperson sends accused back to court martial

• 202.1 (1) Where a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.

• Marginal note:Convening court martial

  (2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen.

• Marginal note:Custody in hospital

  (3) Notwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

• Marginal note:Burden and standard of proof

  (4) In proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

Marginal note:Accused person to remain in hospital

202.11 Notwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

Marginal note:Prima facie case

• 202.12 (1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial

  • (a) not later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; or

  • (b) at any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person.

• Marginal note:Extension of time for holding inquiry

  (1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if he or she is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of military justice.

• Marginal note:Where prima facie case not made

  (2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.

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 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, the 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 military justice.

• Marginal note:Proper administration of military justice

  (8) To determine whether a stay of proceedings is in the interests of the proper administration of military 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 military 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.

Mental Disorder When Offence Committed

Marginal note:Defence of mental disorder

• 202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

• Marginal note:Presumption

  (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

• Marginal note:Burden of proof

  (3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.

• Marginal note:Assessment order

  (4) Subject to regulations, where 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 the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.

Marginal note:Finding of not responsible on account of mental disorder

• 202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.

• Marginal note:Effects

  (2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

  • (a) the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;

  • (b) any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;

  • (c) any court martial or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;

  • (d) [Repealed, 1998, c. 35, s. 51]

  • (e) the finding may be considered in making an order under Division 3 in respect of that person;

  • (f) [Repealed, 2019, c. 15, s. 33]

  • (g) the finding does not include a finding or determination respecting civil liability; and

  • (h) the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

• Marginal note:Finding not previous conviction

  (3) A finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions.

Marginal note:Disposition hearing

• 202.15 (1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay.

• Marginal note:Assessment order

  (2) Subject to regulations, where 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 the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

Marginal note:Disposition

• 202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

  • (a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;

  • (b) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

  • (c) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

• Marginal note:Treatment not a condition

  (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

High-Risk Accused

Marginal note:Application to court martial

• 202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.

• Marginal note:Application to Chief Military Judge

  (2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.

• Marginal note:Restriction

  (3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.

• Marginal note:Finding

  (4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and

  • (a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or

  • (b) the court martial is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

• (5) [Repealed, 2019, c. 15, s. 64]

• Marginal note:Factors to consider

  (6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including

  • (a) the nature and circumstances of the offence;

  • (b) any pattern of repetitive behaviour of which the offence forms a part;

  • (c) the accused person’s current mental condition;

  • (d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and

  • (e) the opinions of experts who have examined the accused person.

• Marginal note:Detention of high-risk accused person

  (7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless

  • (a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and

  • (b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.

• Marginal note:Assessment order

  (8) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.