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

Jurisdiction

Marginal note:Jurisdiction not lost

196.102 A finding of unreasonable delay in respect of any proceedings does not deprive a court martial seized with those proceedings of jurisdiction in respect of the offence, the accused person or the offender.

Application

Marginal note:Stay of proceedings

196.103 A court martial shall not order a stay of proceedings as a result of a finding of unreasonable delay except in accordance with this Division.

Marginal note:Common law rules and principles

196.104 Rules and principles of the common law in respect of a determination of unreasonable delay continue to apply except insofar as they are altered by or are inconsistent with this Division.

Notice to Victims

Marginal note:Reasonable steps to inform

• 196.105 (1) If an application for a finding of unreasonable delay is filed with the court martial, the prosecutor shall, as soon as feasible, take reasonable steps to inform any victim of the offence referred to in the application of the filing of the application.

• Marginal note:Court martial to inquire if notice given

  (2) The court martial shall, at the time the application is heard, inquire of the prosecutor if reasonable steps have been taken to inform the victims, if any, of the filing of the application.

• Marginal note:Notice of court martial’s decision

  (3) The prosecutor shall, as soon as feasible after a decision has been made on the application, take reasonable steps to inform the victims, if any, of the decision.

• Marginal note:Decision not precluded

  (4) The failure of the prosecutor to take reasonable steps to inform the victims, if any, of the application does not preclude the court martial from making a decision in respect of the application.

Case Complexity

Marginal note:Case complexity — factors

• 196.106 (1) In determining whether there has been or will be unreasonable delay, the court martial shall consider whether there are any relevant factors that contributed or will contribute to making the case complex.

• Marginal note:Applications and motions — factors

  (2) If the case involved or will involve applications or motions, either before, during or after the trial, the court martial shall also consider the following factors in assessing whether the case is complex:

  • (a) the number of applications or motions;

  • (b) whether any of the applications or motions required or will require scheduling court martial dates separately and in advance of trial dates;

  • (c) whether any adjournments were or will be required in order to complete the steps required by any of the applications or motions;

  • (d) whether more than one judicial decision was or will be needed to complete the steps required by any of the applications or motions;

  • (e) the amount of cumulative court time that was or will be required to adjudicate the applications or motions;

  • (f) the need for trial continuation dates arising from the applications or motions that required more time than anticipated;

  • (g) the need for trial continuation dates arising from the applications or motions that were not scheduled in advance of the trial; and

  • (h) any factor that the court martial finds relevant in assessing the complexity of the applications or motions.

Days to Be Excluded

Marginal note:Exclusions — sexual offence proceedings

196.107 Subject to section 196.1091, in determining whether there has been or will be unreasonable delay, the court martial shall not take into account any day within any of the following periods:

• (a) in respect of any application made under section 180.002, if a copy of the application was not filed with the Court Martial Administrator at least 60 days before the hearing referred to in section 180.003,

  • (i) the period that consists of the cumulative number of days it took to hear the application, and

  • (ii) any other period, as determined by the court martial, that is attributable to the fact that a copy of the application was not filed with the Court Martial Administrator at least 60 days before the hearing, including any delay caused by the adjournment of any proceeding that is attributable to the late filing of the application;

• (b) in respect of any application made under section 180.03 or 180.1, if a copy of the application was not served at least 60 days before the hearing referred to in subsection 180.04(1) or 180.11(1) to the persons referred to in subsection 180.03(5) or 180.1(5),

  • (i) the period that consists of the cumulative number of days it took to hear the application, and

  • (ii) any other period, as determined by the court martial, that is attributable to the fact that a copy of the application was not served at least 60 days before the hearing, including any delay caused by the adjournment of any proceeding that is attributable to the late filing of the application;

• (c) in respect of any application made under section 180.17, if a copy of the application was not filed with the Court Martial Administrator at least 60 days before the hearing referred to in section 180.18,

  • (i) the period that consists of the cumulative number of days it took to hear the application, and

  • (ii) any other period, as determined by the court martial, that is attributable to the fact that a copy of the application was not filed with the Court Martial Administrator at least 60 days before the hearing, including any delay caused by the adjournment of any proceeding that is attributable to the late filing of the application.

Marginal note:Exclusions — Canada Evidence Act

196.108 Subject to section 196.1091, in determining whether there has been or will be unreasonable delay, the court martial shall not take into account any day within any of the following periods:

• (a) in the case where an objection was made under subsection 37(1) of the Canada Evidence Act before a court martial and an application was made under subsection 37(3) of that Act in respect of the objection, the period that begins on the day the objection was made and ends on the day the application was finally determined;

• (b) in the case of an application made under subsection 38.04(1) or (2) of that Act in respect of a notice arising from the prosecution of the offence given under any of subsections 38.01(1) to (4) of that Act, the period that begins on the day the application was made and ends on the day the application was finally determined.

Marginal note:Exclusion — Canadian Security Intelligence Service Act

196.109 Subject to section 196.1091, in determining whether there has been or will be unreasonable delay, the court martial shall not take into account any day within the period that begins on the day any application under subsection 18.1(4) of the Canadian Security Intelligence Service Act was made and ends on the day it was finally determined.

Marginal note:Actions not made in good faith

196.1091 For greater certainty, in determining the days that are not to be taken into account in relation to applications or objections referred to in sections 196.107 to 196.109, the court martial shall take into account any frivolous or dilatory action, or any action not made in good faith, taken by the prosecutor, by counsel representing the Attorney General of Canada or by any person acting on behalf of the prosecutor or the Attorney General of Canada.

Alternative Remedies to Stay of Proceedings

Marginal note:Alternative remedies to be considered

• 196.1092 (1) A court martial shall not order a stay of proceedings as a result of a finding of unreasonable delay unless it is satisfied that no other remedy would be appropriate and just in the circumstances.

• Marginal note:Factors to be considered

  (2) In determining whether a remedy other than a stay of proceedings is appropriate and just, the court martial shall take into account the following factors:

  • (a) the stage of the proceedings during which the finding of unreasonable delay is made or during which the delay became unreasonable;

  • (b) the impact that a stay of proceedings is likely to have on any victim of the offence;

  • (c) the prejudice that has been or would be suffered by the accused person or offender as a result of unreasonable delay;

  • (d) the public’s trust in the administration of military justice;

  • (e) the maintenance of discipline, efficiency and morale of the Canadian Forces; and

  • (f) the interest that society has in having a final decision on the merits.

DIVISION 6.1Forensic DNA Analysis

Marginal note:Definitions

196.11 The definitions in this section apply in this Division.

Commissioner

Commissioner means the Commissioner of the Royal Canadian Mounted Police. (commissaire)

designated offence

designated offence means a primary designated offence or a secondary designated offence. (infraction désignée)

DNA

DNA means deoxyribonucleic acid. (ADN)

DNA profile

DNA profile means the results of forensic DNA analysis. (profil d’identification génétique)

forensic DNA analysis

forensic DNA analysis

• (a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and

• (b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance. (analyse génétique)

peace officer

peace officer means

• (a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or

• (b) an officer or a non-commissioned member of the Canadian Forces who is

  • (i) a member of the military police, or

  • (ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer. (agent de la paix)

prescribed form

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

primary designated offence

primary designated offence means

• (a) an offence within the meaning of paragraphs (a) and (c.02) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

• (a.1) an offence within the meaning of any of paragraphs (a.1) to (c.01), (c.03) and (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and

• (b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.03) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130. (infraction primaire)

secondary designated offence

secondary designated offence means

• (a) an offence within the meaning of any of paragraphs (a) to (d.2) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

• (b) an offence under any of the following provisions of this Act:

  • (i) paragraph 77(a) (violence to person bringing materiel to forces),

  • (ii) section 79 (mutiny with violence),

  • (iii) section 84 (striking a superior officer),

  • (iv) paragraph 87(b) (violence while in custody),

  • (v) section 95 (striking a subordinate),

  • (vi) paragraph 107(a) (endangering a person on an aircraft), or

  • (vii) section 127 (handling of dangerous substances); and

• (c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b). (infraction secondaire)

Marginal note:Information for warrant to take bodily substances for forensic DNA analysis

• 196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of military justice to do so and that there are reasonable grounds to believe

  • (a) that a designated offence has been committed;

  • (b) that a bodily substance has been found or obtained

    • (i) at the place where the offence was committed,

    • (ii) on or within the body of the victim of the offence,

    • (iii) on anything worn or carried by the victim at the time the offence was committed, or

    • (iv) on or within the body of any person or thing or at any place associated with the commission of the offence;

  • (c) that the person subject to the Code of Service Discipline was a party to the offence; and

  • (d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

• Marginal note:Criteria

  (2) In considering whether to issue the warrant, the military judge shall have regard to all relevant matters, including

  • (a) the nature of the offence and the circumstances surrounding its commission; and

  • (b) whether there is

    • (i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

    • (ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.