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

Absolute Discharge

Marginal note:Absolute discharge

• 203.8 (1) If an accused person pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court martial before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

• Marginal note:Effect of discharge

  (2) If a court martial directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that

  • (a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;

  • (b) the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and

  • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

• Marginal note:References to section 730 of Criminal Code

  (3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).

Restitution

Marginal note:Court martial to consider restitution order

• 203.81 (1) A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely shall consider making a restitution order under section 203.9.

• Marginal note:Inquiry by court martial

  (2) As soon as feasible after a finding of guilt and in any event before imposing the sentence or directing that the offender be discharged absolutely, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

• Marginal note:Adjournment

  (3) On application of the prosecutor or on its own motion, the court martial may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.

• Marginal note:Form

  (4) Victims and other persons may indicate whether they are seeking restitution by completing a form prescribed in regulations made by the Governor in Council and by filing it in accordance with the procedures provided for in regulations made by the Governor in Council, and, if they are seeking restitution, shall establish, in the same manner, their losses and damages, the amount of which must be readily ascertainable.

• Marginal note:Reasons

  (5) If a victim seeks restitution and the court martial does not make a restitution order, it shall include in the court record a statement of its reasons for not doing so.

Marginal note:Restitution order

203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

• (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;

• (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and

• (c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.

Marginal note:Ability to pay

203.901 The offender’s financial means or ability to pay does not prevent the court martial from making an order under section 203.9.

Marginal note:Payment under order

203.902 In making an order under section 203.9, the court martial shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court martial is of the opinion that the amount should be paid in instalments, in which case the court martial shall set out a periodic payment scheme in the order.

Marginal note:More than one person

203.91 An order under section 203.9 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.

Marginal note:Enforcing restitution order

• 203.92 (1) An offender who fails to pay an amount that is ordered to be paid in a restitution order by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order, and the person who was to be paid the amount or to whom the periodic payment was to be made, as the case may be, may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

• Marginal note:Moneys found on offender

  (2) All or any part of an amount that is ordered to be paid in a restitution order may be taken out of moneys found in the possession of the offender at the time of their arrest if the court martial making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.

Marginal note:Notice of order

203.93 A court martial that makes a restitution order shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.

Marginal note:Civil remedy not affected

203.94 A civil remedy for an act or omission is not affected by reason only that an order of restitution has been made in respect of that act or omission.

Passing of Sentence

Marginal note:Only one sentence to be passed

203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

DIVISION 8Provisions Applicable to Imprisonment and Detention

Computation of Term

Marginal note:Commencement of term

• 204 (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the court martial pronounces sentence on the offender.

• Marginal note:Time counted

  (2) The only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.

• Marginal note:Special case

  (3) Where a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.

Service Prisons and Detention Barracks

Marginal note:Service prisons and detention barracks

• 205 (1) Such places as are designated by the Minister for the purpose shall be service prisons and detention barracks and any hospital or other place for the reception of sick persons to which a person who is a service convict, service prisoner or service detainee has been admitted shall, in so far as relates to that person, be deemed to be part of the place to which that person has been committed.

• Marginal note:Corrective disciplinary measures for service prisons and detention barracks

  (2) The nature of and the manner of imposing corrective measures for breach of the regulations, orders and rules applicable in respect of service prisons and detention barracks by a person committed thereto as the result of a sentence passed on that person, and the terms and conditions of remission for good conduct of any part of a punishment involving incarceration, shall be as prescribed in regulations made by the Governor in Council.

• Marginal note:Limitations

  (3) Corrective measures referred to in subsection (2) shall not include whipping, paddling or any of the punishments referred to in paragraphs 139(1)(a) to (l) and shall not be so imposed as to increase the duration of any punishment involving a term of incarceration.

206 to 214 [Repealed, 1998, c. 35, s. 59]

Suspension of Imprisonment or Detention

Marginal note:Suspension of execution of punishment

• 215 (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the court martial that imposes the punishment or, if the offender’s sentence is affirmed, is substituted or is imposed on appeal, by the Court Martial Appeal Court.

• Marginal note:Consideration of victim’s safety and security

  (1.1) If the court martial or the Court Martial Appeal Court, as the case may be, makes a decision that the execution of the punishment be suspended, it shall include in the decision a statement that it has considered the safety and security of every victim of the offence.

• Marginal note:Copy to victim

  (1.2) The court martial or the Court Martial Appeal Court, as the case may be, shall cause a copy of the decision to be given to a victim of the offence if the victim wishes to receive it.

• Marginal note:Conditions

  (2) In suspending the execution of a punishment, the court martial or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

  • (a) to keep the peace and be of good behaviour;

  • (b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in paragraph 215.2(1)(a) or (b); and

  • (c) in the case of an offender who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

• Marginal note:Other conditions

  (3) The court martial or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.

Marginal note:Varying conditions

215.1 On application by an offender, a condition imposed under subsection 215(3) or varied, added or substituted under this section or section 215.2 may be varied, or another condition may be substituted for that condition, by

• (a) a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or

• (b) a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.

Marginal note:Hearing into breach of conditions

• 215.2 (1) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under section 215 or varied, added or substituted under section 215.1 or this section may be made by

  • (a) a military judge, in the case of a condition imposed, varied, added or substituted by a court martial; or

  • (b) a judge of the Court Martial Appeal Court, in the case of a condition imposed, varied, added or substituted by that Court.

• Marginal note:Revocation of suspension or changes to conditions

  (2) If a person referred to in paragraph (1)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

  • (a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

  • (b) vary any conditions imposed under subsection 215(3) or varied, added or substituted under section 215.1 or this section, or add or substitute other conditions, as the person sees fit.

Marginal note:Non-appearance of accused person

215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.