QR&O: Volume II – Division 1 - Discipline and Charge Laying - Chapter 101 General Provisions Respecting the Code of Service Discipline

Effective 1 january 2006, the official version of the QR&O is that published in PDF format on this website.

A consolidation of the QR&O volumes in official PDF version were made as of the 3 July 2019. The HTML version on this website is provided solely for the convenience of readers. Any discrepancies between the HTML and the official PDF version should be reported to the DSCS, Corporate Secretary.

The last modifications to the QR&O came into force on 20 June 2022.

Amendment List:

20 June 2022 – heading before article replaced: 101.01
20 June 2022 – replaced article : 101.01
20 June 2022 – new article: 101.011
20 June 2022 – new article: 101.012
20 June 2022 – repealed article : 101.05
20 June 2022 – new article: 101.051
20 June 2022 – new article: 101.052
20 June 2022 – replaced article: 101.07
20 June 2022 – repealed note: 101.07
20 June 2022 – replaced article: 101.08
20 June 2022 – replaced note B: 101.09
20 June 2022 – replaced subparagraphs: 101.11(1)(c), (d) and (i)
20 June 2022 – repealed subparagraphs: 101.11(1)(g), (h) and (j)
20 June 2022 – new section 6 after added: 101.20
20 June 2022 – new article: 101.21
20 june 2022 – article 101.21 renumbered from 102.01
20 June 2022 – new article: 101.22
20 june 2022 – article 101.22 renumbered from 102.09(1) – (3)
20 June 2022 – new article: 101.23
20 june 2022 – article 101.23 renumbered from 102.09(4)
20 June 2022 – new article: 101.24
20 june 2022 – article 101.24 renumbered from 102.11
20 June 2022 – new article: 101.25
20 june 2022 – article 101.25 renumbered from 102.12
20 June 2022 – new article: 101.26
20 june 2022 – article 101.26 renumbered from 102.13
20 June 2022 – new article: 101.27
20 june 2022 – article 101.27 renumbered from 102.14
20 June 2022 – new article: 101.28
20 june 2022 – article 101.28 renumbered from 102.17
20 June 2022 – new article: 101.29
20 june 2022 – article 101.29 renumbered from 102.18
20 June 2022 – new article: 101.30
20 june 2022 – article 101.30 renumbered from 102.20
20 June 2022 – new article: 101.31
20 june 2022 – article 101.31 renumbered from 102.21
20 June 2022 – new article: 101.32
20 june 2022 – article 101.32 renumbered from 102.22
20 June 2022 – new article: 101.33
20 june 2022 – article 101.33 renumbered from 102.23
20 June 2022 – new article: 101.34
20 june 2022 – article 101.34 renumbered from 102.24
1 September 2018 – paragraph amended 101.03(1)
1 September 2018 – article repealed: 101.08
1 September 2018 – new article: 101.08
1 September 2018 – subparagraph amended: 101.09(3)(c) (English version only)
1 September 2018 – paragraphs amended: 101.11(1) and (2)
1 September 2018 – new paragraph:101.11(2.1)
1 September 2018 – paragraphs amended: 101.11(4) and (5)
1 September 2018 – articles amended: 101.16 and 101.17
1 September 2018 – article amended: 101.19
1 September 2018 – new article: 101.20
1 June 2014 – article 101.055 renumbered as 101.08
1 June 2014 – amended article note (C): 101.06
1 June 2014 – article 101.06 renumbered as 101.05
1 June 2014 – article 101.06 notes (A) to (C) repositioned after 101.05
1 June 2014 – article 101.065 renumbered as 101.03
1 June 2014 – article 101.07 renumbered as 101.04
1 June 2014 – article replaced: 101.08
1 June 2014 – article 101.08 renumbered as 101.09
1 June 2014 – article 101.08 notes (A) and (B) repositioned after 101.09
1 June 2014 – article 101.09 renumbered as 101.07
1 June 2014 – article 101.09 note repositioned after 101.07
1 June 2014 – article repealed: 101.10
1 June 2014 – article added: 101.10
1 June 2014 – heading before article added: 101.10
1 June 2014 – article 101.12 renumbered as 101.06
1 June 2014 – article 101.12 notes (A) and (B) repositioned after 101.06
1 June 2014 – repealed heading before article: 101.13
1 June 2014 – heading before article added: 101.13
1 June 2014 – amended article: 101.13
1 June 2014 – article 101.13 renumbered as 101.18
1 June 2014 – added articles: 101.14, 101.15, 101.16 and 101.17
1 June 2014 – heading before article added: 101.16
1 June 2014 – repealed heading before article: 101.18
1 June 2014 – article replaced: 101.18
1 June 2014 – replaced heading before article: 101.19
1 June 2014 – repealed article: 101.19
1 June 2014 – amended article: 101.20
1 June 2014 – article 101.20 renumbered as 101.10 and 101.11
1 June 2014 – article 101.21 renumbered as 101.19
1 June 2014 – amended heading before article: 101.19
1 June 2014 – repealed article: 101.22
1 June 2014 – repealed article note: 101.22
1 June 2014 – article 101.23 renumbered as 101.12
1 June 2014 – repealed article: 101.24
1 June 2014 – repealed article note: 101.24
1 June 2014 – repealed heading before article: 101.25
1 June 2014 – repealed article: 101.25
1 June 2014 – repealed article: 101.26
1 June 2014 – article 101.26 note repositioned after 101.16
18 October 2013 – replaced heading before article 101.13
18 October 2013 – replaced article: 101.13
18 October 2013 – repealed article: 101.14
14 June 2013 – Amended Article: 101.20
1 December 2011 – Repealed: Heading before article 101.15
1 December 2011 – Repealed: Heading before article 101.175
1 December 2011 – Replaced: Heading before article 101.18
1 December 2011 – Replaced: Heading before article 101.19
1 December 2011 – Replaced: Heading before article 101.25
1 December 2011 – Repealed articles: 101.15 to 101.17
1 December 2011 – Repealed article: 101.175
1 December 2011 – Repealed: Section 8 Heading
29 September 2011 – Repealed Article: 101.27
12 September 2008 – New Article: 101.27
18 July 2008 – Amended Article: 101.26
5 June 2008 – Amended Article: 101.08

History:

(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)

Section 1 – General

101.01 – MEANING OF COMMANDING OFFICER

For the purposes of section 160 of the National Defence Act, commanding officer, in respect of a person charged with having committed a service offence or a service infraction, means:

(a) a commanding officer within the meaning of article 1.02;

(b) a detachment commander;

(d) except in the case of a detention barrack, the commanding officer of the base, unit or element in which the person charged is present when proceedings are taken under the Code of Service Discipline in respect of the person;

(e) the executive officer of a ship; and

(f) if the person charged is a commanding officer within the meaning of subparagraphs (a) to (e), the next superior officer to whom the commanding officer is responsible in matters of discipline.

(G) [P.C. 2022-0268 effective 20 June 2022 – the headings and 101.01 are replaced]

NOTE

A “detachment commander” is the senior officer in charge of a part of a unit separated from the remainder of the unit and operating under conditions that prevent the commanding officer of the unit from effectively exercising disciplinary powers over the part so separated. The term “detachment commander” includes, for example, the officer in immediate command of persons on detached service on shore from their ship, the officer in command of a reconnaissance group specially organized to operate away from the unit, the officer in charge of a part of a construction maintenance unit working away from the unit, the officer in command of a tender that is absent from the ship to which it is attached and the officer in command of ship's boats that are away on detached service for long periods.

Where a detachment is specially formed to operate under these circumstances, the commanding officer should normally appoint the senior officer in charge to be detachment commander and in that case the appointment should be in writing and may contain any limitation of powers of punishment imposed by the commanding officer. Where the situation arises otherwise than by arrangement, the existence of the detachment and therefore the powers of a detachment commander follow from the factual situation. However, in both these cases, a detachment commander becomes a commanding officer under this provision only if the detachment is geographically separated from the remainder of the unit and under conditions that prevent the commanding officer of the unit from effectively exercising disciplinary power.

(C)

101.011 – MEANING OF DELEGATED OFFICER AND SUPERIOR COMMANDER

Section 162.3 of the National Defence Act establishes the following definitions:

“delegated officer means an officer to whom a commanding officer has, under section 162.94, delegated the power to conduct a summary hearing. (officier délégué)

superior commander means an officer of or above the rank of colonel, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)”

(C) [20 June 2022]

101.012 – WRITING OR ELECTRONIC FORMAT

For the purposes of Volume II of the QR&O, any information or document that is required to be provided in writing may be provided by electronic means.

(G) [P.C. 2022-0268 effective 20 June 2022]

(G) [101.015: repealed by P.C. 1999-1305 effective 1 September 1999]

101.02 – HOW RANKS TO BE CONSTRUED

For the purposes of proceedings under the Code of Service Discipline, every reference to the rank of an officer or non-commissioned member is a reference to the highest rank the member holds, whether substantive, temporary, or acting, exclusive of honorary rank.

(G)

101.03 – INTERPRETATION OF CHARGES

(1) In the construction of a charge, Part 1 of a Record of Disciplinary Proceedings or a charge sheet, there shall be presumed in favour of supporting it every proposition that may reasonably be presumed to be impliedly included, though not expressed, in the charge, Part 1 of a Record of Disciplinary Proceedings or the charge sheet.

(2) The statement of the offence and the particulars of the offence shall be read and construed together.

(M) [1 June 2014 – renumbered from 101.065; 1 September 2018 – (1)]

101.04 – CASES NOT PROVIDED FOR IN QR&O

When in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed.

(M) [1 June 2014 – renumbered from 101.07]

(M) [101.05: repealed on 20 June 2022]

NOTES

(A) Paragraph (1) is intended to prevent the ends of justice being defeated because of defects, usually of a technical nature, in matters of procedure that do not affect the merits of the case.

(B) For the effect of deviation from forms, see article 1.11 (Forms).

(C) When a sentence awarded by a service tribunal involves more than one type of punishment, e.g., reprimand and a fine, the punishment that is higher on the scale of punishments should be pronounced first by the service tribunal. However, no sentence is invalid by reason only that a punishment lower on the scale of punishments was pronounced before any punishment higher on the scale of punishments.

(C)

101.051 – PURPOSE OF THE CODE OF SERVICE DISCIPLINE

Section 55 of the National Defence Act provides:

“55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.

(2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.”

(C) [20 June 2022]

101.052 – CONTEMPT OF PROCEEDINGS

Paragraph 302(d) of the National Defence Act provides:

“302 Every person is guilty of an offence and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or to both, where the person

(d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a court martial, a military judge, an officer conducting a summary hearing, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV.”

(C) [20 June 2022]

(G) [101.055 renumbered to 101.08 by P.C. 2014-0575 effective 1 June 2014]

101.06 – WARNING OF PERSONS IN CUSTODY OR SUSPECTED OF HAVING COMMITTED AN OFFENCE

(1) There is no objection to an investigator, endeavouring to discover the author of a crime, asking questions in respect thereof of any person from whom the investigator thinks useful information can be obtained.

(2) When a charge has been laid against a person, a caution in the following form should be administered before any questions are put to that person or statement is taken:

“You are not obliged to say anything. You have nothing to fear from any threat and you have nothing to hope from any promise whether or not you do say anything, but anything you say may be taken down in writing or recorded by other means, or both, and may be used as evidence. Do you fully understand this warning?”

(3) When no charge has been laid against a person but it is suspected that the person may be implicated in an offence and he has not been previously questioned, the following form of caution should be used before any questions are put to that person or a statement is taken:

“Before you say anything relating to any charge which has been or may be preferred against you, you are advised that you are not obliged to say anything, but anything you say may be taken down in writing or recorded by other means, or both, and may be used as evidence. Do you fully understand this warning?”

(4) When a person who is suspected of being implicated in an offence has been questioned previously about the circumstances under investigation, it is necessary to ensure that the effect of any inducement or threat made at that time has been removed, and, therefore, the following form of supplementary caution should be used before questions are put to that person or a statement is taken:

“I wish to give you the following warning: You must clearly understand that anything said to you previously should not influence you nor make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat, nor are you obliged to say anything further, but anything you do say may be taken down in writing or recorded by other means, or both, and may be used as evidence. Do you fully understand this warning?”

(5) A statement made by a person in custody or being questioned before there is time to administer a caution is not rendered valueless merely because no caution was given, but in such a case the person should be cautioned as soon as possible so that the person's position is clear before any further statements are made.

(6) Where more than one person is accused with the same offence and statements are taken separately from the accused persons, the investigator should not read to an accused person the statement of any other accused person but should furnish a copy of any other accused person's statement and nothing should be said or done by the investigator to invite a reply.

(7) Where an accused person is furnished with a copy of a statement pursuant to paragraph (6) and desires to make a statement in reply, the usual caution should be administered.

(8) A person making a statement should not be cross-examined, but this does not preclude the putting of questions to remove ambiguity, to clear up points in the statement or to indicate other aspects of the matter which the person may wish to include in the statement.

(9) The exact words of statements made by persons accused of an offence should be recorded while they are being spoken or as soon thereafter as is practicable and the statement should be signed by the accused person in the presence of one or more witnesses.

(M) [1 June 2014 – renumbered from 101.12]

NOTES

(A) The provisions of this article are intended as a guide only and the fact that a caution has or has not been given in accordance with them will not of itself render the confession admissible or inadmissible in evidence. For the purpose of admissibility in evidence, it will always be a question of fact as to whether any confession was freely and voluntarily made.

(B) Oral and written statements by an accused may be admissible in evidence and if they are admitted it is the exact words of the accused that are of importance. Writing them down and having them signed serves to avoid argument as to what the accused actually did say, but those words, reported by a witness who can testify to them and satisfy a court as to the reliability of that testimony, are just as receivable in evidence as if they were in writing. When statements are made through questions and answers, the exact words of the questions and answers should be written down. The electronic recording of statements by means of audio-visual recording or by other means of recording can also be used. The words used in the cautions under this article are sufficient for informing accused and suspects that their interview may be recorded by any electronic means.

(C)

(M) [101.065 renumbered to 101.03 on 1 June 2014]

101.07 – CERTIFICATION OF QUALIFICATION TO ADMINISTER THE CODE OF SERVICE DISCIPLINE

A superior commander, commanding officer or delegated officer must hold a valid certification from the Judge Advocate General attesting that the officer is qualified to perform duties in the administration of the Code of Service Discipline at the time the officer performs any function under the Code.

(G) [P.C. 2014-0575 effective 1 June 2014 – renumbered from 101.09; 20 June 2022 – 101.07 is replaced]

(C) [Note : repealed on 20 June 2022]

101.08 – RESTITUTION OF PROPERTY

Section 249.25 of the National Defence Act provides:

“249.25 (1) A court martial that finds a person guilty of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

(2) Where an accused person is tried for an offence but is not convicted and it appears to the court martial that an offence has been committed, the court martial may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

(3) An order shall not be made in respect of

(a) property to which an innocent purchaser for value has acquired lawful title;

(b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or

(c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.

(4) An order made under this section shall be executed by the persons by whom the process of the court martial is ordinarily executed.”

(G) [101.08: repealed by P.C. 2018-433 effective 1 September 2018]

(C) [1 September 2018; 20 June 2022 – 101.08 is replaced]

101.09 – RELIEF FROM PERFORMANCE OF MILITARY DUTY – PRE AND POST TRIAL

(1) For the purpose of this article, the following authorities may relieve an officer or non-commissioned member from the performance of military duty:

(a) the Chief of the Defence Staff;

(b) an officer commanding a command;

(c) in the case of a non-commissioned member or an officer below the rank of Lieutenant-Colonel, an officer commanding a formation; and

(d) in the case of an officer cadet or a non-commissioned member below the rank of Warrant Officer, a commanding officer.

(1.1) This article does not apply to a military judge, the Provost Marshal, the Director of Military Prosecutions or the Director of Defence Counsel Services.

(2) Notwithstanding paragraph (1), only the Chief of the Defence Staff may relieve an officer or non-commissioned member from the performance of military duty, if that member is on active service by reason of an emergency.

(3) An authority may relieve an officer or non-commissioned member from the performance of military duty where, in one of the following situations, the authority considers that it is necessary to relieve the member from the performance of military duty to separate the member from their unit:

(a) the authority has reasonable grounds to believe that the member has committed an offence under an Act of Parliament or of a provincial legislature, and an investigation has commenced;

(b) the member has been charged with an offence referred to in subparagraph (a); or

(c) the member has been found guilty of an offence referred to in subparagraph (a) but is not undergoing a punishment of detention or imprisonment.

(4) The authority who relieves an officer or non-commissioned member from the performance of military duty shall order that the member return to duty when the circumstances giving rise to the decision to relieve the member from the performance of military duty are no longer present.

(5) Prior to determining whether to relieve an officer or non-commissioned member from the performance of military duty, the authority shall provide to the member

(a) the reason why the decision to relieve the member from the performance of military duty is being considered; and

(b) a reasonable opportunity to make representations.

(6) The authority who relieves an officer or non-commissioned member from the performance of military duty shall, within 24 hours of relieving the member from the performance of military duty, provide the member with written reasons for the decision.

(7) An authority, other than the Chief of the Defence Staff, who relieves an officer or non-commissioned member from the performance of military duty or orders that the member return to duty, shall make a report in writing to the officer to whom the authority is responsible in matters of discipline, setting out the reasons for the decision.

(M) [1 June 2014 – renumbered from 101.08; 1 September 2018 – (3)(c)]

NOTES

(A) Relief from the performance of military duty is not to be used as a form of discipline or as a sanction. Action to relieve a member should only be considered after concluding that other administrative means are inadequate in the circumstances. In determining whether to relieve a member, an authority must balance the public interest including the effect on operational effectiveness and morale, with the interests of the member. A commanding officer must monitor each case to ensure that appropriate action is taken if there are changes in the circumstances on which the decision to relieve a member was based.

(B) An officer or non-commissioned member who is relieved from the performance of military duty is required to obey all lawful commands in accordance with article 19.015.

(C)[20 June 2022 – Note (B) is replaced]

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Section 2 – Provision of Legal Services to Persons Subject to Code of Service Discipline

101.10 – DUTIES AND FUNCTIONS OF DIRECTOR OF DEFENCE COUNSEL SERVICES

Section 249.19 of the National Defence Act provides:

“249.19 The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.”

(C) [1 June 2014 – renumbered from 101.20(1)]

101.11 – LEGAL SERVICES PROVIDED BY DIRECTOR OF DEFENCE COUNSEL SERVICES

(1) For the purposes of section 249.19 of the National Defence Act, the following legal services are prescribed:

(a) provision of legal advice to a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry;

(b) provision of legal advice to a person arrested or detained in respect of a service offence;

(c) provision of legal counsel to an accused person where there are reasonable grounds to believe that the accused person is unfit to stand trial;

(d) provision of legal advice of a general nature to a person charged with having committed a service infraction, or to an officer or non-commissioned member appointed under article 121.02 (Assistance to Person Charged with a Service Infraction) to assist the person charged, on matters relating to summary hearings;

(e) provision of legal counsel to a person who has been released from custody in respect of a review under subsection 158.7(1) or section 159.9 of the National Defence Act;

(f) provision of legal counsel to a person in custody in respect of a hearing under subsection 159(1) or section 159.8 of the National Defence Act or a review under section 159.9 of that Act;

(g) [Repealed]

(h) [Repealed]

(i) provision of legal counsel to an accused person in respect of a charge that has been referred to the Director of Military Prosecutions under subsection 161.1(1) of the National Defence Act;

(j) [Repealed]

(k) provision of legal counsel to an offender in respect of an application to a judge under subsection 148(2) or section 215.1 of the National Defence Act or a hearing before a judge under subsection 148(4) or 215.2(1) of that Act;

(l) provision of legal counsel to the respondent on an appeal, or an application for leave to appeal, by the Minister under section 230.1, 230.2 or 245 of the National Defence Act (see articles 115.03 – Right to Appeal by Minister, 115.031 – Appeal Respecting the Legality of a Decision Made under Section 227.03, 227.1 or 227.12 of the National Defence Act, and 115.27 – Appeal to Supreme Court of Canada);

(m) provision of legal advice to a person who wishes to preserve the right to appeal under section 230, 230.2 or 245 of the National Defence Act, including the right to apply for leave to appeal under section 230 or 245 (see articles 115.02 – Right to Appeal by Person Tried, 115.031 – Appeal Respecting the Legality of a Decision Made under Section 227.03, 227.1 or 227.12 of the National Defence Act, and 115.27 – Appeal to Supreme Court of Canada);

(n) provision of legal counsel to a person referred to in section 248.2 of the National Defence Act in respect of an application under that section;

(o) provision of legal counsel to a person who has been released from custody in respect of a review under subsection 248.8(1) of the National Defence Act or an application made under subsection 248.81(1) of that Act;

(p) provision of legal counsel to a person referred to in subsection 248.9(1) or (2) of the National Defence Act in respect of an appeal under that subsection;

(q) provision of legal advice to a person who wishes to apply, or has applied, to the Appeal Committee under article 101.20 (Application – Representation on Appeal); and

(r) if approved by the Appeal Committee under paragraph 101.20(6), provision of legal counsel to the appellant on an appeal, or the applicant on an application for leave to appeal, under section 230, 230.2 or 245 of the National Defence Act (see articles 115.02 – Right to Appeal by Person Tried, 115.031 – Appeal Respecting the Legality of a Decision Made under Section 227.03, 227.1 or 227.12 of the National Defence Act, and 115.27 – Appeal to Supreme Court of Canada).

(2) The provision of legal counsel to an accused person under subparagraph (1)(i) includes representation at

(a) a court martial;

(b) a hearing to consider an application for release pending appeal under section 248.1 of the National Defence Act; and

(c) a hearing as to the sufficiency of admissible evidence to put the accused person on trial where a finding of unfit to stand trial has been made.

(2.1) The provision of legal counsel to a person under subparagraph (1)(r) includes representation in respect of a request for a stay of proceedings under section 65.1 of the Supreme Court Act or any modification, variation or vacation of a stay order made under that section.

(3) Legal officers performing defence counsel services may, with the concurrence of the Director of Defence Counsel Services, perform other duties that are not incompatible with their duties as defence counsel.

(4) The Director of Defence Counsel Services shall report annually to the Judge Advocate General on the provision of legal services prescribed in paragraph (1) and the performance of any other duties under paragraph (3).

(5) A person is not entitled to legal services prescribed in paragraph (1) in connection with any matter for which the person is represented by civilian legal counsel at the person’s own expense.

(G) [P.C. 2014-0575 effective 1 June 2014 renumbered from 101.20(2); P.C 2018-433 effective 1 September 2018 – (1), portion before (2)(a), (2)(b), (2.1), (4) and (5); P.C. 2022-0268 effective 20 June 2022 – (1) (c), (d) and (i) are replaced and (1)(g), (h) and (j) are repealed]

101.12 – PREPARATION OF DEFENCE BY ACCUSED

When a court martial has been convened, the commanding officer shall ensure that the accused is afforded full opportunity to prepare his defence and to have free and private communication with his legal counsel, his adviser and, if he has no legal counsel, his witnesses.

(G) [P.C. 2014-0575 effective 1 June 2014 renumbered from 101.23]

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Section 3 – Director of Military Prosecutions Inquiry Committee and Director of Defence Counsel Services Inquiry Committee

101.13 – DIRECTOR OF MILITARY PROSECUTIONS INQUIRY COMMITTEE

(1) A committee to be known as the Director of Military Prosecutions Inquiry Committee is established for the purpose of subsection 165.1(2) of the National Defence Act.

(2) The Director of Military Prosecutions Inquiry Committee is to be composed of members appointed by the Minister as follows:

(a) one person who has been nominated by the Judge Advocate General and who is a barrister or advocate with at least 10 years' standing at the bar of a province but is not an officer or non-commissioned member;

(b) one person who has been nominated by the Chief of the Defence Staff and who is not a legal officer or a member of the military police; and

(c) one person who has been nominated, subject to the consent of the appropriate Deputy Attorney General, by the members referred to in subparagraphs (a) and (b) and who is a federal or provincial Crown Attorney with at least 10 years' standing at the bar of a province.

(3) The Chairperson of the Director of Military Prosecutions Inquiry Committee is the member appointed under subparagraph (2)(c).

(4) Each member holds office for a term of not more than four years.

(5) A member is eligible to be reappointed on the expiration of a first or subsequent term.

(6) In the event of the absence or incapacity of a member, the Minister may appoint, as a substitute temporary member, a person nominated in accordance with paragraph (2).

(7) If the office of a member becomes vacant during the member's term, the Minister shall appoint a person nominated in accordance with paragraph (2) to hold office for the remainder of the term.

(8) A quorum consists of all three members.

(G) [P.C. 2014-0575 effective 1 June 2014 renumbered from 101.18]

101.14 – DIRECTOR OF DEFENCE COUNSEL SERVICES INQUIRY COMMITTEE

(1) A committee to be known as the Director of Defence Counsel Services Inquiry Committee is established for the purpose of subsection 249.18(2) of the National Defence Act.

(2) The Director of Defence Counsel Services Inquiry Committee is to be composed of members appointed by the Minister as follows:

(b) one person who has been nominated by the Chief of the Defence Staff and who is not a legal officer or a member of the military police; and

(c) one person who has been nominated by the members referred to in subparagraphs (a) and (b) and who is a barrister or advocate,with at least 10 years' standing at the bar of a province but is not a prosecutor with a federal or provincial prosecution service.

(3) The Chairperson of the Director of Defence Counsel Services Inquiry Committee is the member appointed under subparagraph (2)(c).

(4) Each member holds office for a term of not more than four years.

(5) A member is eligible to be reappointed on the expiration of a first or subsequent term.

(6) In the event of the absence or incapacity of a member, the Minister may appoint, as a substitute temporary member, a person nominated in accordance with paragraph (2).

(7) If the office of a member becomes vacant during the member's term, the Minister shall appoint a person nominated in accordance with paragraph (2) to hold office for the remainder of the term.

(8) A quorum consists of all three members.

(G) [P.C. 2014-0575 effective 1 June 2014]

101.15 – CONDUCT OF INQUIRY

(1) The Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee shall, on request in writing made by the Minister, commence an inquiry as to whether the Director of Military Prosecutions or the Director of Defence Counsel Services, as the case may be, should be removed from office.

(2) The Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee may, on receipt of any complaint or allegation in writing made in respect of the Director of Military Prosecutions or the Director of Defence Counsel Services, as the case may be, commence an inquiry as to whether the Director of Military Prosecutions or the Director of Defence Counsel Services should be removed from office.

(3) The Chairperson of the Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee may designate a member of his or her committee to examine the complaint or allegation referred to in paragraph (2) and to recommend whether an inquiry should be commenced.

(4) The Director of Military Prosecutions or the Director of Defence Counsel Services shall be given reasonable notice of the inquiry's subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

(5) The Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that an inquiry be held in public.

(6) The Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee may recommend to the Minister that the Director of Military Prosecutions or the Director of Defence Counsel Services, as the case may be, be removed if, in its opinion,

(a) the Director of Military Prosecutions or the Director of Defence Counsel Services has become incapacitated or disabled from the due execution of his or her duties by reason of

(i) infirmity,

(ii) having been guilty of misconduct,

(iii) having failed in the due execution of his or her duties, or

(iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her duties; or

(b) the Director of Military Prosecutions or the Director of Defence Counsel Services does not satisfy the physical and medical fitness standards applicable to officers.

(7) The Director of Military Prosecutions Inquiry Committee or the Director of Defence Counsel Services Inquiry Committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, its inquiry committee shall make its report available to the public.

(G) [P.C. 2014-0575 effective 1 June 2014]

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Section 4 – Court Martial

101.16 – DUTIES AND FUNCTIONS OF COURT MARTIAL ADMINISTRATOR

Section 165.19 of the National Defence Act provides:

“165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

(1.1) The Court Martial Administrator shall summon the accused person to appear at the court martial.

(2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

(3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.”

(C) [1 June 2014; 1 September 2018]

NOTE

Duties of the Court Martial Administrator with respect to the convening of courts martial and pre-trial administration are set out in Chapter 111 (Convening of Courts Martial and Pre-Trial Administration).

(C) [1 June 2014 – renumbered from 101.26]

101.17 – OTHER DUTIES OF COURT MARTIAL ADMINISTRATOR

For the purposes of subsection 165.19(2) of the National Defence Act, the Court Martial Administrator shall, in addition to the other duties that are prescribed under QR&O,

(a) manage the Office of the Chief Military Judge and supervise personnel, other than military judges, within that Office;

(b) assign a court reporter for each court martial or other hearing before a military judge;

(d) maintain a file in respect of each court martial or other hearing before a military judge; and

(e) retain the audio recordings and minutes of proceedings referred to in paragraph 112.66(1).

(G) [P.C. 2014-0575 effective 1 June 2014; P.C. 2018-433 effective 1 September 2018 – portion before (a) and (e)]

(G) [101.175: repealed by P.C. 2011-1406 effective 1 December 2011]

101.18 – COURT MARTIAL RULES COMMITTEE

(1) A committee to be known as the Court Martial Rules Committee is established for the purpose of section 165.3 of the National Defence Act.

(2) The Court Martial Rules Committee is to be composed of the following members:

(a) the Chief Military Judge;

(b) one military judge designated by the Chief Military Judge;

(d) the Director of Defence Counsel Services or his or her legal officer designate;

(e) the Judge Advocate General or his or her legal officer designate; and

(f) the Court Martial Administrator.

(3) The Chief Military Judge shall preside over the Court Martial Rules Committee but, if the Chief Military Judge is absent or so requests, another member designated by the Chief Military Judge shall preside.

(4) Four members of the Court Martial Rules Committee constitute a quorum.

(G) [P.C. 2014-0575 effective 1 June 2014 renumbered from 101.13]

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Section 5 – Appeal Committee

101.19 –APPEAL COMMITTEE

(1) A committee to be known as the Appeal Committee is established, consisting of the following members appointed by the Minister:

(a) a chairperson—nominated by the Judge Advocate General –who is a retired judge who was

(i) a military judge, or

(ii) a judge of criminal court;

(b) one person — nominated by the Chief of the Defence Staff — who is

(i) a retired judge who was a military judge or was a judge of a criminal court, or

(ii) a barrister or advocate with at least ten years’ standing at the bar of a province who is not an officer or non-commissioned member; and

(i) a retired judge who was a military judge or was a judge of a criminal court, or

(ii) a barrister or advocate with at least ten years’ standing at the bar of a province who is not an officer or non-commissioned member.

(2) For the purposes of paragraph (1), “criminal court” means a “court of criminal jurisdiction” or a “superior court of criminal jurisdiction”, as those terms are defined in section 2 of the Criminal Code.

(a) a retired military judge, a retired judge advocate, a retired president of a Standing Court Martial or Special General Court Martial or a retired judge of a superior court, appointed by the Judge Advocate General;

(b) a barrister or advocate with standing at the bar of a province, other than a legal officer who reports to the Director of Military Prosecutions or the Director of Defence Counsel Services, appointed by the Chief of the Defence Staff; and

(c) a barrister or advocate with standing at the bar of a province, other than a legal officer who reports to the Director of Military Prosecutions or the Director of Defence Counsel Services, appointed by the Director of Defence Counsel Services.

(3) Each member holds office during good behaviour for a term not exceeding four years and may be removed for cause at any time by the Minister.

(4) A member is eligible to be reappointed.

(5) In the event of the absence or incapacity of a member, the Minister may appoint, as a substitute temporary member, a person nominated in accordance with paragraph (1).

(6) A quorum consists of all three members.

(G) [P.C. 2018-433 effective 1 September 2018]

101.20 – APPLICATION – REPRESENTATION ON APPEAL

(1) A person who has delivered a Notice of Appeal under section 232 of the National Defence Act (see article 115.05 – Notice of Appeal) or has filed an equivalent notice under the Supreme Court Act may, within 21 days after the day on which the notice is delivered or filed, apply to the Appeal Committee to be provided with the legal services referred to in subparagraph 101.11(1)(r).

(2) The application shall be delivered to the Director of Defence Counsel Services, together with a copy of the Notice of Appeal or equivalent notice. The Director shall forward these documents to the chairperson of the Appeal Committee as soon as feasible.

(3) The Appeal Committee shall review the application and make a decision as expeditiously as the circumstances permit.

(4) The Appeal Committee shall, in reviewing the application, consider any written submission that

(a) has been provided to it by the applicant’s current or former legal counsel or any barrister or advocate who assists the Director of Defence Counsel Services; and

(b) is relevant to the determination to be made under paragraph (6).

(5) The Director of Defence Counsel Services may make a recommendation to the Appeal Committee in respect of the application.

(6) The Appeal Committee shall approve the application if the majority of the members determines that there is a reasonable chance that

(a) one or more issues raised on the appeal will be decided in favour of the applicant; and

(b) the decision referred to in subparagraph (a) will result in a change to the decision that is under appeal or be important for the administration of military justice.

(7) The Appeal Committee shall notify the applicant and the Director of Defence Counsel Services of its decision in writing and, if the application is rejected, include the reasons for the decision.

(8) There is no right to grieve in respect of any matter that is related to the exercise of powers or the performance of duties or functions under this article.

(G) [P.C. 2018-433 effective 1 September 2018]

Section 6 – Jurisdiction

101.21 – PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Section 60 of the National Defence Act provides:

“60 (1) The following persons are subject to the Code of Service Discipline:

(a) an officer or non-commissioned member of the regular force;

(b) an officer or non-commissioned member of the special force;

(i) undergoing drill or training, whether in uniform or not,

(ii) in uniform,

(iii) on duty,

(iv) [Repealed, S.C. 1998, c. 35, s. 19],

(v) called out under Part VI in aid of the civil power,

(vi) called out on service,

(vii) placed on active service,

(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,

(ix) serving with any unit or other element of the regular force or the special force, or

(x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

(d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non- commissioned member to the Canadian Forces;

(e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;

(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;

(g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;

(h) an alleged spy for the enemy;

(i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and

(j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

(2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).

(3) Every person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1).”

NOTE

See Part VI of the Visiting Forces Act R.S.C., 1985, c. V-2.

(G) [101.21 renumbered to 101.19 by P.C. 2014-0575 effective 1 June 2014]

(C) [20 June 2022 – new section 6 and article 101.21 renumbered from 102.01]

101.22 – PERSONS ACCOMPANYING CANADIAN FORCES

(1) Section 61 of the National Defence Act provides:

“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, manoeuvers, 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.

(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.

(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”.

(2) Subsection 62(1) of the National Defence Act provides:

“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.”

(G) [101.22: repealed by P.C. 2014-0575 effective 1 June 2014]

(C) [20 June 2022 – 101.22 renumbered from 102.09(1) – (3)]

101.23 – DESIGNATION OF COUNTRY OR PLACE

For the purposes of paragraph 61(1)(b) of the National Defence Act, any country, except Canada, in which any unit or other element of the Canadian Forces is on service or active service is designated as a country in which a person accompanies a unit or other element of the Canadian Forces. (See article 105.03 – Arrest and Handover of Dependants in Foreign Countries.)

(G) [101.23 renumbered to 101.12 by P.C. 2014-0575 effective 1 June 2014; P.C. 2022-0268 effective 20 June 2022: 101.23 renumbered from 102.09 (4)]

101.24 – PERSONS ATTENDING EDUCATIONAL INSTITUTIONS

For the purposes of paragraph 60(1)(g) of the National Defence Act, a person attending an educational institution established under section 47 of that Act is subject to the Code of Service Discipline only if the person is an officer or non-commissioned member.

(G) [101.24 to 101.26: repealed by P.C. 2014-0575 effective 1 June 2014; P.C. 2022-0268 effective 20 June 2022: article 101.24 renumbered from 102.11]

101.25 – SPIES FOR THE ENEMY

Subsection 62(2) of the National Defence Act provides:

“62 (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.”

(G) [101.24 to 101.26: repealed by P.C. 2014-0575 effective 1 June 2014]

(C) [20 June 2022 – 101.25 renumbered from 102.12]

101.26 – RELEASED PERSONS SERVING SENTENCE

Subsection 62(3) of the National Defence Act provides

“62 (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.”

(G) [101.24 to 101.26: repealed by P.C. 2014-0575 effective 1 June 2014]

(C) [20 June 2022 – 101.26 renumbered from 102.13]

101.27 – PERSONS UNDER SPECIAL ENGAGEMENT

Section 63 of the National Defence Act provides:

“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.

(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.

(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.”

(G) [101.27: repealed by P.C. 2011-1111 effective 29 September 2011]

(C) [20 June 2022 – 101.27 renumbered from 102.14]

101.28 – PREVIOUS ACQUITTAL OR CONVICTION

Subsections 66(1) and (2) of the National Defence Act provide:

“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.

(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.”

(C) [20 June 2022 – 101.28 renumbered from 102.17]

101.29 – OTHER OFFENCES DISPOSED OF AT PREVIOUS TRIAL

Subsection 66(3) of the National Defence Act provides:

“66 (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.”

(C) [20 June 2022 – 101.29 renumbered from 102.18]

101.30 – PLACE OF COMMISSION OF OFFENCE

Section 67 of the National Defence Act provides:

“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.”

(C) [20 June 2022 – 101.30 renumbered from 102.20]

101.31 – PLACE OF TRIAL

Section 68 of the National Defence Act provides:

“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. ”

(C) [20 June 2022 – 101.31 renumbered from 102.21]

101.32 – PERIOD OF LIABILITY UNDER CODE OF SERVICE DISCIPLINE

Section 69 of the National Defence Act provides:

“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.

(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.”

(C) [20 June 2022 – 101.32 renumbered from 102.22]

101.33 – NO JURISDICTION – CERTAIN OFFENCES COMMITTED IN CANADA

Section 70 of the National Defence Act provides:

“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; or

(C) [20 June 2022 – 101.33 renumbered from 102.23]

101.34 – TRIAL OF MEMBERS BY CIVIL COURTS

(1) Section 71 of the National Defence Act provides:

“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.”

(2) Section 273 of the National Defence Act provides:

“273 Where a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of, and may be tried and punished by, a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place, or by any other court to which jurisdiction has been lawfully transferred.”

(C) [20 June 2022 – 101.34 renumbered from 102.24]

[101.35 to 101.99: not allocated]

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Date modified:: 2018-10-05