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

Restitution

Marginal note:Restitution order

71.12 Every victim has the right to have the court martial consider making a restitution order against the offender.

Marginal note:Enforcement

71.13 Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.

General Provisions

Marginal note:Application

• 71.14 (1) This Division applies in respect of a victim of a service offence in their interactions with the military justice system

  • (a) while the offence is being investigated or prosecuted or the charge is being referred;

  • (b) while the offender is serving a punishment in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a penitentiary or civil prison; and

  • (c) while the accused person is, in relation to the offence, under the jurisdiction of a court martial or a Review Board, as defined in section 197, if they are found unfit to stand trial or not responsible on account of mental disorder.

• Marginal note:Reporting of offence

  (2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the military justice system, the investigation of the offence is deemed to begin at the time of the reporting.

Marginal note:Exercise of rights

• 71.15 (1) The rights of victims under this Division are to be exercised through the mechanisms provided by law.

• Marginal note:Connection to Canada

  (2) A victim is entitled to exercise their rights under this Division only if

  • (a) they are present in Canada; or

  • (b) they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

Marginal note:Victim’s liaison officer

• 71.16 (1) Unless he or she is of the opinion that it is not possible to do so for operational reasons, a commanding officer shall, at the request of the victim, appoint an officer or non-commissioned member, who satisfies the conditions established in regulations made by the Governor in Council, to be a liaison officer to assist the victim as provided for in subsection (3). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim to be their liaison officer.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the victim’s liaison officer, a commanding officer shall appoint another officer or non-commissioned member to replace the liaison officer during that absence or incapacity, unless it is not possible to do so for operational reasons.

• Marginal note:Role of victim’s liaison officer

  (3) Assistance by a victim’s liaison officer consists of

  • (a) explaining to the victim the manner in which service offences are charged, dealt with and tried under the Code of Service Discipline; and

  • (b) obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under this Division.

Marginal note:Interpretation of this Division

71.17 This Division is to be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to

• (a) interfere with the proper administration of military justice, including

  • (i) by causing interference with investigative discretion or by causing excessive delay in, compromising or hindering the investigation of any service offence,

  • (ii) by causing interference with charge laying discretion in respect of any service offence, or by causing excessive delay in, compromising or hindering the laying or referral of a charge in respect of any service offence, and

  • (iii) by causing interference with prosecutorial discretion or by causing excessive delay in, compromising or hindering the prosecution of any service offence;

• (b) interfere with ministerial discretion in respect of any service offence;

• (c) interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community;

• (d) endanger the life or safety of any individual; or

• (e) cause injury to international relations, national defence or national security.

Marginal note:Interpretation of other Acts, regulations, etc.

71.18 To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Division comes into force is to be construed and applied in a manner that is compatible with the rights provided for under this Division.

Marginal note:Primacy in event of inconsistency

• 71.19 (1) If, after the application of sections 71.17 and 71.18, there is any inconsistency between any provision of this Division and any provision of any Act, order, rule or regulation referred to in section 71.18, the provision of this Division prevails to the extent of the inconsistency.

• Marginal note:Exception — Acts, regulations, etc.

  (2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act, the Privacy Act and the Canadian Victims Bill of Rights and in respect of any orders, rules and regulations made under any of those Acts.

Marginal note:No adverse inference

71.2 No adverse inference is to be drawn against a person who is charged with a service offence from the fact that an individual has been identified as a victim in relation to the service offence.

Marginal note:Entering or remaining in Canada

71.21 Nothing in this Division is to be construed so as to permit any individual to

• (a) enter Canada or remain in Canada beyond the end of the period for which they are authorized to so remain;

• (b) delay any removal proceedings or prevent the enforcement of any removal order; or

• (c) delay any extradition proceedings or prevent the extradition of any person to or from Canada.

Remedies

Marginal note:Complaint

• 71.22 (1) Every victim who is of the opinion that any of their rights under this Division have been infringed or denied by an authority within the military justice system has the right to file a complaint in accordance with regulations made by the Governor in Council.

• Marginal note:Complaints mechanism

  (2) Regulations made by the Governor in Council may, among other things, provide for

  • (a) the review of complaints involving alleged infringements or denials of rights under this Division;

  • (b) the power to make recommendations to remedy such infringements and denials; and

  • (c) the obligation to notify victims of the result of those reviews and of any recommendations that were made.

Marginal note:Status

71.23 Nothing in this Division is to be construed as granting to, or removing from, any victim, any individual acting on behalf of a victim or any victim’s liaison officer the status of a party, intervenor or observer in any proceedings.

Marginal note:No cause of action

71.24 No cause of action or right to damages arises from an infringement or denial of a right under this Division. For greater certainty, nothing in this section is to be construed as affecting any other cause of action or right to damages.

Marginal note:No appeal

71.25 No appeal lies from any decision or order solely on the grounds that a right under this Division has been infringed or denied.

DIVISION 2Service Offences and Punishments

Responsibility for Offences

Marginal note:Parties to offences

• 72 (1) Every person is a party to and guilty of an offence who

  • (a) actually commits it;

  • (b) does or omits to do anything for the purpose of aiding any person to commit it;

  • (c) abets any person in committing it; or

  • (d) counsels or procures any person to commit it.

• Marginal note:Attempts

  (2) Every person who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.

• Marginal note:Common intention

  (3) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence.

Civil Defences

Marginal note:Rules and principles of civil courts applicable

72.1 All rules and principles that are followed from time to time in the civil courts and that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

Misconduct of Commanders in Presence of Enemy

Marginal note:Offences by commanders when in action

73 Every officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces who

• (a) when under orders to carry out an operation of war or on coming into contact with an enemy that it is the duty of the officer to engage, does not use his utmost exertion to bring the officers and non-commissioned members under his command or his vessel, aircraft or other materiel into action,

• (b) being in action, does not, during the action, in the officer’s own person and according to the rank of the officer, encourage his officers and non-commissioned members to fight courageously,

• (c) when capable of making a successful defence, surrenders his vessel, aircraft, defence establishment, materiel, unit or other element of the Canadian Forces to the enemy,

• (d) being in action, improperly withdraws from the action,

• (e) improperly fails to pursue an enemy or to consolidate a position gained,

• (f) improperly fails to relieve or assist a known friend to the utmost of his power, or

• (g) when in action, improperly forsakes his station,

is guilty of an offence and on conviction, if the officer acted traitorously, shall be sentenced to imprisonment for life, if the officer acted from cowardice, is liable to imprisonment for life or less punishment, and in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Misconduct of any Person in Presence of Enemy

Marginal note:Offences by any person in presence of enemy

74 Every person who

• (a) improperly delays or discourages any action against the enemy,

• (b) goes over to the enemy,

• (c) when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect,

• (d) improperly abandons or delivers up any defence establishment, garrison, place, materiel, post or guard,

• (e) assists the enemy with materiel,

• (f) improperly casts away or abandons any materiel in the presence of the enemy,

• (g) improperly does or omits to do anything that results in the capture by the enemy of persons or the capture or destruction by the enemy of materiel,

• (h) when on watch in the presence or vicinity of the enemy, leaves his post before he is regularly relieved or sleeps or is drunk,

• (i) behaves before the enemy in such manner as to show cowardice, or

• (j) does or omits to do anything with intent to imperil the success of any of Her Majesty’s Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.