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

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,

  • (iv.1) the offence was committed against a person who, in the performance of their duties and functions, was providing services as a first responder,

  • (iv.2) the offence was committed with the use of violence, threats or attempts of violence against another person and the offender has been convicted, within the previous five years, of one or more such offences,

  • (iv.3) in the case of an offence under section 114 or 115, it was committed with intent to sell or barter the stolen property or to fraudulently return it to a retail merchant,

  • (iv.4) in the case of an offence under any of sections 113 to 116, the offence interfered with the access to or functioning of an essential infrastructure, as defined in subsection 52.1(2) of the Criminal Code, or caused it to be unsafe or unfit for use,

  • (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.

Marginal note:Abuse of persons under age of 18

203.4 When a court martial imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Marginal note:Objectives — offence for the benefit of a criminal organization

203.41 When a court martial imposes a sentence for an offence that is committed for the benefit of, at the direction of, or in association with, a criminal organization, the court martial shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Facts Relevant to the Determination of a Sentence

Marginal note:Disputed facts

• 203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,

  • (a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;

  • (b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

  • (c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.

• Marginal note:Panel

  (2) In the case of a General Court Martial, the court martial

  • (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

  • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

Victim Impact Statement

Marginal note:Duty to consider victim impact statement

• 203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.

• Marginal note:Filing of statement

  (2) The victim’s statement must be filed in accordance with regulations made by the Governor in Council.

• Marginal note:Presentation of statement

  (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to present the statement by

  • (a) reading it;

  • (b) reading it in the presence and close proximity of any support person of the victim’s choice or a support animal;

  • (c) subject to subsection 203.7(4), reading it outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or

  • (d) presenting it in any other manner that the court martial considers appropriate.

• Marginal note:Evidence concerning victim admissible

  (4) Whether or not a statement has been prepared and filed in accordance with this section, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or determining whether the offender should be discharged absolutely.

Marginal note:Inquiry by court martial

• 203.7 (1) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 203.6(1).

• Marginal note:Adjournment

  (2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

• Marginal note:Photograph

  (3) During the presentation

  • (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings; or

  • (b) if the statement is presented by an individual acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings.

• Marginal note:Conditions of exclusion

  (4) The victim shall not present the statement outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

• Marginal note:Consideration of statement

  (5) In considering the statement, the court martial shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection 203.6(1) and disregard any other portion.

Military Impact Statement

Marginal note:Military impact statement

• 203.71 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made on the behalf of the Canadian Forces describing the harm done to discipline, efficiency or morale as a result of the commission of the offence and the impact of the offence on discipline, efficiency or morale.

• Marginal note:Inquiry by court martial

  (1.1) As soon as feasible after a finding of guilt and in any event before imposing a sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide an opportunity for the preparation of a statement referred to in subsection (1).

• Marginal note:Adjournment

  (1.2) On application of the prosecutor or a person acting on behalf of the Canadian Forces or on its own motion, the court martial may adjourn the proceedings to provide an opportunity for the preparation of a statement referred to in subsection (1) or to present evidence in accordance with subsection (5) if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

• Marginal note:Filing of statement

  (2) The statement must be prepared by an officer or non-commissioned member who is authorized to do so by regulations made by the Governor in Council and it must be filed in accordance with regulations made by the Governor in Council.

• Marginal note:Presentation of statement

  (3) The court martial shall, at the request of the person who made the statement, permit the person to present the statement by reading it or by presenting it in any other manner that the court martial considers appropriate.

• Marginal note:Copy of statement

  (4) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.

• Marginal note:Evidence concerning Canadian Forces admissible

  (5) Whether or not a statement has been prepared and filed in accordance with this section, the court martial may consider any other evidence concerning the Canadian Forces for the purpose of determining the sentence to be imposed on the offender or determining whether the offender should be discharged absolutely.

Community Impact Statement

Marginal note:Community impact statement

• 203.72 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged absolutely in respect of any service offence, the court martial shall consider any statement made by an individual on a community’s behalf, describing the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.

• Marginal note:Inquiry by court martial

  (1.1) As soon as feasible after a finding of guilt and in any event before imposing a sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide an opportunity for the preparation of a statement referred to in subsection (1).

• Marginal note:Adjournment

  (1.2) On application of the prosecutor or the community or on its own motion, the court martial may adjourn the proceedings to provide an opportunity for the preparation of a statement referred to in subsection (1) or to present evidence in accordance with subsection (6) if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

• Marginal note:Filing of statement

  (2) The statement must be filed in accordance with regulations made by the Governor in Council.

• Marginal note:Presentation of statement

  (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the request of the individual who made the statement, permit the individual to present the statement by

  • (a) reading it;

  • (b) reading it in the presence and close proximity of any support person of the individual’s choice or a support animal;

  • (c) subject to subsection (4), reading it outside the courtroom or behind a screen or other device that would allow the individual not to see the offender; or

  • (d) presenting it in any other manner that the court martial considers appropriate.

• Marginal note:Conditions of exclusion

  (4) The individual making the statement shall not present it outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

• Marginal note:Copy of statement

  (5) The court martial shall, as soon as feasible after a finding of guilt, cause a copy of the statement to be provided to the prosecutor and to the offender or counsel for the offender.

• Marginal note:Evidence concerning community admissible

  (6) Whether or not a statement has been prepared and filed in accordance with this section, the court martial may consider any other evidence concerning the community for the purpose of determining the sentence to be imposed on the offender or determining whether the offender should be discharged absolutely.

Order Prohibiting Contact

Marginal note:Order prohibiting contact

• 203.73 (1) When an offender is convicted of an offence punishable under section 130 that is an offence under the Criminal Code and that is also an offence of a sexual nature or committed for a sexual purpose, an offence related to criminal harassment or trafficking in persons or an offence committed against their intimate partner, the court martial that imposes a sentence on the offender may make an order prohibiting the offender from having any contact — including by communicating by any means — with any victim, witness or other person identified in the order except in accordance with any conditions specified in the order that the court martial considers necessary.

• Marginal note:Duration of prohibition

  (2) The prohibition may be for life or for any shorter duration that the court martial considers desirable.

• Marginal note:Application to vary order

  (3) The person identified in the order or the prosecutor may at any time make an application to vary the order.

• Marginal note:Jurisdiction

  (4) The application shall be made to the Chief Military Judge if the offender is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 729.2 of the Criminal Code.

• Marginal note:Court martial

  (5) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.

• Marginal note:Variation of order

  (6) A court martial may require the offender to appear before it and, after giving the offender and the applicant an opportunity to make representations, may vary the order if, in its opinion, the variation is desirable because of changed circumstances after the conditions were prescribed.