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

Marginal note:Persons accompanying Canadian Forces

• 61 (1) For the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the person

  • (a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations;

  • (b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;

  • (c) is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or

  • (d) is embarked on a vessel or aircraft of that unit or other element.

• Marginal note:How persons accompanying Canadian Forces to be treated

  (2) Subject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.

• Marginal note:Certificate entitling person to treatment as officer

  (3) A person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate.

Marginal note:Command

• 62 (1) Every person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies.

• Marginal note:Spies

  (2) Every person described in paragraph 60(1)(h) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time.

• Marginal note:Released persons serving sentence

  (3) Every person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained.

Marginal note:Persons under special engagement

• 63 (1) Subject to subsection (2), every person mentioned in paragraph 60(1)(j) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.

• Marginal note:Agreement entitling person to treatment as officer

  (2) Where the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.

• Marginal note:Command where person under special engagement

  (3) Every person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving.

64 [Repealed, R.S., 1985, c. 31 (1st Supp.), s. 44]

Marginal note:Persons under command of officer deemed their superior officer

• 65 (1) Every person subject to the Code of Service Discipline by virtue of paragraph 60(1)(f), (g), (i) or (j) shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person.

• Marginal note:Prohibited interpretation

  (2) Nothing in subsection (1) shall be construed as requiring any person described therein to bear arms or to participate in any active operations against the enemy.

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

• 66 (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

  • (a) has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or

  • (b) has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.

• Marginal note:Exception

  (2) Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.

• Marginal note:Effect of other offences admitted at previous trial

  (3) A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

67 Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.

Place of Trial

Marginal note:No territorial limitation

68 Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.

Period of Liability

Marginal note:When person is liable

• 69 (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

• Marginal note:Sections 130 and 132

  (2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.

Limitations with respect to Certain Offences

Marginal note:Offences not triable by courts martial

70 A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:

• (a) murder;

• (b) manslaughter;

• (c) an offence under any of sections 280 to 283 of the Criminal Code;

• (d) an offence under any of the following provisions of the Criminal Code:

  • (i) section 151 (sexual interference),

  • (ii) section 152 (invitation to sexual touching),

  • (iii) section 153 (sexual exploitation),

  • (iv) section 153.1 (sexual exploitation of person with disability),

  • (v) section 155 (incest),

  • (vi) subsection 160(1) (bestiality),

  • (vii) subsection 160(2) (compelling the commission of bestiality),

  • (viii) subsection 160(3) (bestiality in presence of or by a child),

  • (viii.1) subsection 160(3.1) (representation of bestiality),

  • (ix) section 162 (voyeurism),

  • (x) section 162.1 (publication, etc., of an intimate image without consent),

  • (xi) section 163.1 (child sexual abuse and exploitation material),

  • (xii) section 170 (parent or guardian procuring sexual activity),

  • (xiii) section 171 (householder permitting prohibited sexual activity),

  • (xiv) section 171.1 (making sexually explicit material available to child),

  • (xv) section 172.1 (luring a child),

  • (xvi) section 172.2 (agreement or arrangement — sexual offence against child),

  • (xvii) subsection 173(2) (exposure),

  • (xviii) section 271 (sexual assault),

  • (xix) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

  • (xx) section 273 (aggravated sexual assault),

  • (xxi) section 273.3 (removal of a child from Canada),

  • (xxii) section 279.011 (trafficking — person under 18 years),

  • (xxiii) subsection 279.02(2) (material benefit — trafficking of person under 18 years),

  • (xxiv) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years),

  • (xxv) section 286.1 (obtaining sexual services for consideration),

  • (xxvi) section 286.2 (material benefit from sexual services),

  • (xxvii) section 286.3 (procuring), and

  • (xxviii) section 286.4 (advertising sexual services);

• (e) an offence under the Criminal Code — other than an offence referred to in paragraph (d) — that is of a sexual nature or that is committed for a sexual purpose;

• (f) an offence under the Criminal Code, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (d) or (e) if it occurred on or after that day;

• (g) conspiring or attempting to commit an offence referred to in any of paragraphs (d) to (f) or being an accessory after the fact to such an offence; or

• (h) counselling a person to commit an offence referred to in any of paragraphs (d) to (f) if the offence is not committed.

Marginal note:No authority to investigate — certain offences

70.1 Despite any other provision of this Act and any other law, an officer or non-commissioned member does not have authority to investigate, for the purposes of the laying of a charge under paragraph 130(1)(a) or an information under the Criminal Code, in relation to an offence referred to in any of paragraphs 70(d) to (h) that was, or is alleged to have been, committed in Canada.

Marginal note:Clarification — investigative measures

• 70.2 (1) Nothing in section 70.1 prevents an officer or non-commissioned member from exercising their powers or performing their duties and functions, before the arrival of the civilian authority having jurisdiction in the matter, to the extent necessary to prevent the commission, continuation or repetition of an offence referred to in any of paragraphs 70(d) to (h) that, as the case may be, is being, was, or is alleged to have been committed in Canada, including

  • (a) making an arrest in relation to the offence in accordance with Division 3 of Part III of this Act or section 494 or 495 of the Criminal Code; or

  • (b) if an arrest is made under paragraph (a), conducting a search incident to the arrest.

• Marginal note:Evidence relating to the offence

  (2) Nothing in section 70.1 prevents an officer or non-commissioned member from securing or preserving any evidence of or relating to the offence referred to in subsection (1) before the arrival of the civilian authority having jurisdiction in the matter.

• Marginal note:Evidence otherwise secured

  (3) Nothing in section 70.1 prevents an officer or non-commissioned member from securing or preserving — to the extent that their powers, duties and functions under this Act, other than under subsection (1) or (2), or any other law authorize them to do so — evidence of or relating to an offence referred to in any of paragraphs 70(d) to (h) that was, or is alleged to have been, committed in Canada.

• Marginal note:Transfer of arrested persons and evidence

  (4) An officer or non-commissioned member shall, as soon as feasible, transfer a person arrested under paragraph (1)(a) to the custody of the civilian authority having jurisdiction in the matter and transfer to them any evidence secured or preserved under any of subsections (1) to (3).

Marginal note:Clarification — private prosecutions

70.3 Nothing in section 70.1 prevents an officer or non-commissioned member from initiating or conducting a private prosecution in relation to an offence referred to in any of paragraphs 70(d) to (h).

Jurisdiction of Civil Courts

Marginal note:No interference with civil jurisdiction

71 Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.