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

Marginal note:Procedural irregularities

• 202.22 (1) Any procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby.

• Marginal note:Reasons for disposition and copies to be provided

  (2) After making a disposition in respect of an accused person under section 201, 202 or 202.16, a court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons.

• Marginal note:Transmittal of transcript to Review Board

  (3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Transmittal of transcript to Review Board

  (3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Order of committal

  (4) Where a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation.

Marginal note:Definition of justice

• 202.23 (1) In this section, justice means a justice as defined in section 2 of the Criminal Code.

• Marginal note:Arrest without warrant for contravention of disposition

  (2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person

  • (a) is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or

  • (b) has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.

• Marginal note:Accused person released subject to conditions

  (2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

• Marginal note:Continued detention

  (2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe

  • (a) that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to

    • (i) establish the identity of the accused person,

    • (ii) establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),

    • (iii) prevent the commission of an offence, or

    • (iv) prevent the accused person from doing anything referred to in paragraph (2)(a) or (b); or

  • (b) that the accused person is subject to a disposition or an assessment order of a Review Board of another province.

• Marginal note:Accused person brought before justice or commanding officer

  (2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

• Marginal note:Justice or commanding officer not available

  (3) If a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.

• Marginal note:Release of accused person

  (3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

• Marginal note:Notice

  (3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

• Marginal note:Order pending decision of Review Board

  (4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

• Marginal note:Powers of Review Board

  (5) Where a Review Board receives a notice pursuant to subsection (4), it may exercise the powers and shall perform the duties referred to in the Criminal Code in respect of the accused person as if the Review Board were conducting a review of a disposition.

Protected Statements

Marginal note:Definition of protected statement

• 202.24 (1) In this section, protected statement means a statement made by the accused person, during the course and for the purposes of an assessment ordered under this Division or treatment directed by a disposition made under section 202, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

• Marginal note:Protected statements not admissible against accused

  (2) No protected statement or reference to a protected statement made by an accused person is admissible in evidence, without the consent of the accused person, in any proceeding before a court, court martial, tribunal, body or person with jurisdiction to compel the production of evidence.

• Marginal note:Exceptions

  (3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

  • (a) determining whether the accused person is unfit to stand trial;

  • (b) making a disposition or placement decision respecting the accused person;

  • (c) determining under subsection 202.162(3) whether to revoke a finding that an accused person is a high-risk accused;

  • (d) determining whether the balance of the mind of the accused person was disturbed at the time of commission of the alleged offence, where the accused person is a female charged with an offence arising out of the death of her newly-born child;

  • (e) determining whether the accused person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from responsibility by virtue of subsection 202.13(1), if the accused person puts his or her mental capacity to form the requisite intent into issue or if the prosecutor raises the issue after a finding is made of not responsible on account of mental disorder;

  • (f) challenging the credibility of an accused person in any proceeding where the testimony of the accused person is inconsistent in a material particular with a protected statement that the accused person made previously; or

  • (g) establishing the perjury of an accused person who is charged with perjury in respect of a statement made in any proceeding.

Provisions of Criminal Code Applicable

Marginal note:Powers of Review Board

• 202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16 or subsection 202.161(4), except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

• Marginal note:Application

  (1.1) For the application of subsection (1), a reference to the attorney general of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

• Marginal note:References to Attorney General

  (1.1) For the purpose of subsection (1), a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions. [2014, c. 6, s. 28]

• Marginal note:References to Attorney General

  (1.1) For the purpose of subsection (1), a reference to the Attorney General of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code and a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of that Act shall be read as a reference to the Director of Military Prosecutions. [2014, c. 6, s. 32]

• Marginal note:Application of paragraph 672.121(a) of Criminal Code

  (2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.

Marginal note:Application of ss. 672.67 to 672.71 of Criminal Code to findings

202.26 Sections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.

DIVISION 7.1Sentencing

203 [Repealed, 2019, c. 15, s. 65]

Purpose and Principles of Sentencing by Courts Martial

Marginal note:Fundamental purpose of sentencing

• 203.1 (1) The fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.

• Marginal note:Objectives

  (2) The fundamental purpose of sentencing is to be achieved by imposing just punishments that have one or more of the following objectives:

  • (a) to promote a habit of obedience to lawful commands and orders;

  • (b) to maintain public trust in the Canadian Forces as a disciplined armed force;

  • (c) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

  • (d) to deter offenders and other persons from committing offences;

  • (e) to assist in rehabilitating offenders;

  • (f) to assist in reintegrating offenders into military service;

  • (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

  • (h) to provide reparations for harm done to victims or to the community; and

  • (i) to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.

Marginal note:Fundamental principle of sentencing

203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Marginal note:Other sentencing principles

203.3 Sentences must be imposed in accordance with the following other principles:

• (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

  • (i) the offender, in committing the offence, abused their rank or other position of trust or authority,

  • (ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

  • (iii) the offender, in committing the offence, abused their spouse or common-law partner,

  • (iv) the offender, in committing the offence, abused a person under the age of 18 years,

  • (v) the commission of the offence resulted in substantial harm to the conduct of a military operation,

  • (vi) the offence was committed in a theatre of hostilities,

  • (vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

  • (viii) the offence was a terrorism offence;

• (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• (c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;

• (c.1) all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders;

• (d) a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces; and

• (e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.