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

Marginal note:Destruction of bodily substances, etc.

• 196.23 (1) Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 196.12 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after

  • (a) the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;

  • (b) the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; or

  • (c) the expiry of one year after the charge is withdrawn unless during that year the person is again charged with the designated offence or any other offence in respect of the same transaction.

• Marginal note:Exception

  (2) A military judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the judge considers appropriate if the judge is satisfied that they might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

• Marginal note:Destruction of bodily substances, etc., voluntarily given

  (3) Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person.

Marginal note:Collection of additional bodily substances

• 196.24 (1) A military judge may, on ex parte application made in the prescribed form within a reasonable time, authorize, in the prescribed form, the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose if

  • (a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 196.14; or

  • (b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.

• Marginal note:Reasons

  (2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.

• Marginal note:For greater certainty

  (3) For greater certainty, the person who may be made subject to the authorization continues to be liable to be dealt with under the Code of Service Discipline for that purpose.

• Marginal note:Persons not in custody

  (4) If the military judge authorizes the taking of samples of bodily substances from a person who is not in custody, an order in the prescribed form shall be directed to the person requiring them to report at the place, day and time set out in the order and submit to the taking of the samples.

Marginal note:Review by Director of Military Prosecutions

• 196.241 (1) On receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or an authorization granted under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.

• Marginal note:Clerical error

  (2) If the Director of Military Prosecutions is of the opinion that the defect is due to a clerical error, the Director shall

  • (a) apply, ex parte, to the military judge who made the order, or to another military judge, to have it corrected; and

  • (b) transmit a copy of the corrected order or authorization, if any, to the Commissioner.

• Marginal note:Substantive defect

  (3) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall inform the Commissioner of that opinion.

• Marginal note:No defect

  (4) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is a designated offence, the Director shall transmit that opinion, with written reasons, to the Commissioner.

Marginal note:Order denying access to information used to obtain a warrant

• 196.25 (1) A military judge may, on application made at the time of issuing a warrant, make an order prohibiting access to and the disclosure of any information relating to the warrant on the ground that

  • (a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

  • (b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

• Marginal note:Reasons

  (2) For the purpose of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

  • (a) if disclosure of the information would

    • (i) compromise the identity of a confidential informant,

    • (ii) compromise the nature and extent of an ongoing investigation,

    • (iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

    • (iv) prejudice the interests of an innocent person; and

  • (b) for any other sufficient reason.

• Marginal note:Procedure

  (3) If an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the military judge considers desirable in the circumstances, including terms and conditions concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the military judge immediately on determination of the application, and that packet shall be kept in the custody of the Court Martial Administrator in a place to which the public has no access or in any other place that the judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

• Marginal note:Application for variance of order

  (4) An application to terminate the order or vary any of its terms and conditions may be made to the military judge who made the order or to another military judge.

DIVISION 6.2Identification of Accused Persons and Offenders

Marginal note:Meaning of designated offence

196.26 In this Division, designated offence means an offence under any of the following provisions of this Act:

• (a) paragraphs 75(a) to (d) (offences related to security);

• (b) paragraphs 77(a) and (d) to (i) (offences related to operations);

• (c) section 78 (spying for the enemy);

• (d) section 79 (mutiny with violence);

• (e) section 80 (mutiny without violence);

• (f) paragraphs 81(a) and (b) (offences related to mutiny);

• (g) section 84 (striking or offering violence to a superior officer);

• (h) paragraphs 87(a) to (c) (resisting arrest or custody);

• (i) section 95 (abuse of subordinates);

• (j) section 100 (setting free without authority or allowing or assisting escape);

• (k) section 101 (escape from custody);

• (l) section 101.1 (failure to comply with conditions);

• (m) section 102 (hindering arrest or confinement or withholding assistance);

• (n) paragraphs 111(1)(a) and (b) (improper driving of vehicles);

• (o) section 113 (causing fires);

• (p) section 114 (stealing);

• (q) section 115 (receiving);

• (r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

• (s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

• (t) section 118 (offences in relation to tribunals);

• (u) section 118.1 (failure to appear or attend);

• (v) section 119 (false evidence);

• (w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

• (x) section 127 (negligent handling of dangerous substances);

• (y) section 128 (conspiracy); or

• (z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

Marginal note:Fingerprints and photographs

• 196.27 (1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

• Marginal note:Use of force

  (2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

• Marginal note:Publication

  (3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

Marginal note:No liability for acting under this Division

196.28 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay, on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

DIVISION 7Mental Disorder

Interpretation

Marginal note:Definitions

197 For the purposes of this Division,

appropriate province

appropriate province means

• (a) in respect of a court martial held in Canada, the province in which it is held, or

• (b) in respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person; (province concernée)

assessment

assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; (évaluation)

disposition

disposition means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4); (décision)

medical practitioner

medical practitioner means a person who is entitled to practise medicine by the laws of a province; (médecin)

Review Board

Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code; (commission d’examen)

significant threat to the safety of the public

significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. (risque important pour la sécurité du public)

Fitness to Stand Trial

Marginal note:Presumption of fitness

• 198 (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial.

• Marginal note:Court directs issue to be tried

  (2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial.

• Marginal note:Burden of proof

  (3) An accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial.

• Marginal note:Order for assessment

  (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 is unfit to stand trial, the court martial may make an order for an assessment of the accused person.

• Marginal note:Subsequent proceedings

  (5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial.

Marginal note:Postponing trial of issue

• 199 (1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.

• Marginal note:Issue not tried

  (2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried.