ARCHIVED - QR&O: Volume II - Chapter 101 General Provisions Respecting the Code of Service Discipline (Historical Version: 5 June 2008 to 17 July 2008)

Alternate Formats

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

The Volume II Chapter 101: General Provisions Respecting the Code of Service Discipline replaces this content.

Section 1 – General

101.01 – MEANING OF "COMMANDING OFFICER"

(1) For the purposes of proceedings under the Code of Service Discipline, "commanding officer":

  1. means, in addition to the officers mentioned in the definition of commanding officer in article 1.02 (Definitions), a detachment commander; and
  2. includes, in relation to an accused person,
    1. the commanding officer of the base, unit or element to which the accused belongs or, except in the case of a detention barrack, the commanding officer of the base, unit or element in which the accused is present when proceedings are taken under the Code of Service Discipline in respect of the accused,
    2. where the accused is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline or such other officer as the Chief of the Defence Staff may designate, and
    3. the executive officer of a ship, where there is no superior commander on board or in company with the ship and the accused is a non-commissioned member above the rank of sergeant or an officer below the rank of major.

(2) The powers of punishment of a detachment commander shall be subject to such limitations as may be imposed by Chief of the Defence Staff, or the detachment commander's commanding officer.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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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)

(101.015: REPEALED BY P.C. 1999-1305 OF 8 JULY 1999 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 TO 101.05 INCLUSIVE: NOT ALLOCATED)

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101.055 – RESTITUTION OF PROPERTY AND RETURN OF EXHIBITS

(1) Section 249.25 of the National Defence Act provides:

"249.25 (1) Where a person is convicted of an offence under the Code of Service Discipline, the service tribunal 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 service tribunal 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 service tribunal that an offence has been committed, the service tribunal 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 service tribunal 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

  1. property to which an innocent purchaser for value has acquired lawful title;
  2. a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or
  3. 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 service tribunal is ordinarily executed."

(2) An exhibit that has been submitted at a summary trial and has not been restored under paragraph (1) to the person apparently entitled to it may be returned to the person apparently entitled to it with the approval of the commanding officer of the unit, base or element where the exhibit has been retained.

(3) An exhibit that has been submitted at a court martial and has not been restored under paragraph (1) to the person apparently entitled to it may be returned to the person apparently entitled to it with the approval of the Chief Military Judge.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

101.06 – EFFECT OF IRREGULARITIES IN PROCEDURE

(1) A finding made or a sentence passed by a service tribunal shall not be invalid by reason only of deviation from the procedure prescribed in QR&O, unless it appears that injustice has been done to the accused person by the deviation.

(2) Nothing in paragraph (1) shall be construed as relieving an officer or non-commissioned member of the consequences of contravention of the provisions of QR&O.

(M)

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., reduction in rank 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)

101.065 – INTERPRETATION OF CHARGES

(1) In the construction of a charge, Part 1 (Charge Report) 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 (Charge Report) of a Record of Disciplinary Proceedings or the charge sheet. (1 September 1999)

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

(M) (1 September 1999)

101.07 – 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)

101.08 – 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:

  1. the Chief of the Defence Staff;
  2. an officer commanding a command;
  3. in the case of a non-commissioned member or an officer below the rank of Lieutenant-Colonel, an officer commanding a formation; and
  4. 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. (5 June 2008)

(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:

  1. 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;
  2. the member has been charged with an offence referred to in subparagraph (a); or
  3. the member has been convicted 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

  1. the reason why the decision to relieve the member from the performance of military duty is being considered; and
  2. 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) (9 May 2008 effective 5 June 2008)

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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) Although a member is relieved from the performance of military duty, they are required to obey all lawful commands, including an order to attend before a service tribunal or a board of inquiry.

(C) (9 January 2001)

101.09 – TRAINING AND CERTIFICATION OF SUPERIOR COMMANDERS AND COMMANDING OFFICERS

(1) Before superior commanders and commanding officers assume their duties, they shall be:

  1. trained in the administration of the Code of Service Discipline in accordance with a curriculum established by the Judge Advocate General; and
  2. certified by the Judge Advocate General as qualified to perform their duties in the administration of the Code of Service Discipline.

(2) The Chief of the Defence Staff may delay the training required under subparagraph (1)(a) to the extent necessary to meet urgent operational requirements.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 April 2000)

NOTE

The purpose of this article is to ensure that superior commanders and commanding officers are knowledgeable concerning the administration of the Code of Service Discipline.

(C) (1 April 2000)

101.10 – LOSS OF MINUTES OF PROCEEDINGS OF COURT MARTIAL

If, at any time, the original minutes of the proceedings of a court martial or any part of the original minutes is lost, a valid and sufficient record of the trial for all purposes may be made by the signature of the military judge who presided at the court martial being affixed to a copy of the minutes or applicable part thereof.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

(101.11: REPEALED 5 OCTOBER 1998)

101.12 – 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)

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)


Section 2 – Removal of a Military Judge from Office

101.13 – ESTABLISHMENT OF INQUIRY COMMITTEE

(1) A committee to be known as the Inquiry Committee is hereby established for the purpose of subsection 165.21(2) of the National Defence Act.

(2) The Inquiry Committee shall consist of two or more judges of the Court Martial Appeal Court appointed by the Chief Justice of the Court.

(3) The Chief Justice shall appoint one of the judges to act as Chairperson.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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101.14 – CONDUCT OF INQUIRY

(1) The Inquiry Committee shall, upon receipt of a request made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

(2) The Inquiry Committee may inquire into any complaint or allegation communicated in writing in respect of a military judge as to whether the judge should be removed from office.

(3) For the purposes of paragraph (2), the Chairperson of the Inquiry Committee may designate one of its members to conduct a preliminary investigation for the purpose of assisting the Inquiry Committee to determine whether an inquiry should be conducted.

(4) An inquiry under this article

  1. is to be carried out in the manner that is best calculated to do justice; and
  2. may be held 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, requires that the inquiry be held in public.

(5) After completion of an inquiry, the Inquiry Committee shall report its conclusions and submit the record of the inquiry to the Minister.

(6) The Inquiry Committee may, in its report under paragraph (5), recommend that the Governor in Council remove from office the military judge in respect of whom an inquiry has been conducted, where, in its opinion, the military judge has become incapacitated or disabled from the due execution of the military judge's judicial duties by reason of:

  1. infirmity;
  2. having been guilty of misconduct;
  3. having failed in the due execution of the military judge's judicial duties; or
  4. having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of the military judge's judicial duties.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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Section 3 – Reappointment of Military Judges

101.15 – ESTABLISHMENT OF RENEWAL COMMITTEE

For the purpose of subsection 165.21(3) of the National Defence Act there is hereby established a committee to be known as the Renewal Committee consisting of one person, being the Chief Justice of the Court Martial Appeal Court. (11 March 2008)

(G) (P.C. 2008-0548 of 11 March 2008)

101.16 – NOTIFICATION BY MILITARY JUDGE

A military judge seeking reappointment shall notify the Renewal Committee and the Minister not earlier than six months, and not later than two months, prior to the expiration of the military judge's appointment. (11 March 2008)

(G) (P.C. 2008-0548 of 11 March 2008)

101.17 – RECOMMENDATION BY RENEWAL COMMITTEE

(1) The Renewal Committee shall, upon receipt of notification under article 101.16 (Notification by Military Judge) and before the expiration of the appointment of the military judge concerned, make a recommendation to the Governor in Council concerning the renewal of the appointment of the military judge. (11 March 2008)

(2) In making its recommendation the Renewal Committee shall not consider the record of judicial decisions of the military judge concerned. (11 March 2008)

(G) (P.C. 2008-0548 of 11 March 2008)

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Section 4 – Age for Ceasing to Hold Office – Military Judges

101.175 – AGE FOR CEASING TO HOLD OFFICE – MILITARY JUDGES

For the purposes of subsection 165.21(4) of the National Defence Act, a military judge ceases to hold office on reaching the retirement age for the officer's rank set out in the table to article 15.17 (Release of Officers – Age and Length of Service) that applies to that officer.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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Section 5 – Removal of the Director of Military Prosecutions

101.18 – ESTABLISHMENT OF INQUIRY COMMITTEE

(1) Est constitué, aux fins du paragraphe 165.1(2) de la Loi sur la défense nationale, un comité appelé le comité d'enquête.

(2) The Inquiry Committee consists of the following three members:

  1. one person nominated by the Judge Advocate General who is a barrister or advocate with standing at the bar of a province but is not an officer or non-commissioned member of the Canadian Forces;
  2. one person nominated by the Chief of the Defence Staff who is not a legal officer or an officer or non-commissioned member appointed for the purposes of section 156 of the National Defence Act; and
  3. one person who is a federal or provincial Crown Attorney and who is nominated, with the consent of the appropriate deputy attorney general, by the members who are nominated under subparagraphs (a) and (b).

(3) The Chairperson of the Inquiry Committee shall be the person nominated under subparagraph 2(c).

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)


Section 6 – Provision of Legal Services to Persons Subject to the Code of Service Discipline

101.19 – APPOINTMENT OF DIRECTOR OF DEFENCE COUNSEL SERVICES


Section 249.18 of the National Defence Act provides:

"249.18 (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Defence Counsel Services.

(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years.

(3) The Director of Defence Counsel Services is eligible to be re-appointed on the expiration of a first or subsequent term of office."

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

101.20 – DUTIES AND FUNCTIONS OF DIRECTOR OF DEFENCE COUNSEL SERVICES

(1) 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."

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

  1. provision of legal advice to a person arrested or detained in respect of a service offence;
  2. provision of legal counsel to an accused person where there are reasonable grounds to believe that the accused person is unfit to stand trial (see article 107.10 – Appointment of Legal Counsel – Accused Unfit To Stand Trial);
  3. provision of legal advice of a general nature to an assisting officer or accused person on matters relating to summary trials;
  4. provision of legal advice with respect to the making of an election to be tried by court martial (see articles 108.17 – Election to be Tried by Court Martial and 108.18 – Opportunity to Consult Legal Counsel on Election);
  5. provision of legal counsel in respect of a hearing under subsection 159(1) of the National Defence Act;
  6. provision of legal counsel to an accused person in respect of whom an application to a referral authority has been made under article 109.03 (Application to Referral Authority for Disposal of a Charge);
  7. where the Minister appeals the legality of a finding or sentence or the severity of a sentence awarded by a court martial (see articles 115.03 – Right to Appeal of Minister and 115.27 – Appeal to Supreme Court of Canada), provision of legal counsel to the Respondent;
  8. provision of legal counsel to a person on an appeal or an application for leave to appeal under section 230 or 245 of the National Defence Act with the approval of the Appeal Committee established under article 101.21 (Appeal Committee); and
  9. 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.

(3) For greater certainty, the provision of legal counsel to an accused person under subparagraph 2(f) includes representation at:

  1. a court martial;
  2. a hearing for release pending appeal; and
  3. 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.

(4) 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.

(5) The Director of Defence Counsel Services shall report annually to the Judge Advocate General on the provision of legal services prescribed under paragraph (2) and the performance of any other duties under paragraph (4).

(6) Legal counsel is not provided by the Director of Defence Counsel Services under paragraph (2) in connection with any matter for which a person is represented by civilian legal counsel.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

101.21 – APPEAL COMMITTEE

(1) For the purpose of this article, an appeal has professional merit if there is a reasonable chance that one or more of the issues raised on the appeal could be successful and

  1. result in the change of a court martial finding or sentence; or
  2. be of importance to the administration of military justice.

(2) A committee to be known as the Appeal Committee is established. The Committee shall consist of the following:

  1. 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;
  2. 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
  3. 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) The person appointed under subparagraph (2)(a) shall act as the chairperson of the Committee.

(4) If a person has delivered a Notice of Appeal under section 232 of the National Defence Act, the person may apply to the Committee for the provision of legal counsel by the Director of Defence Counsel Services for the appeal.

(5) The application and a copy of the Notice of Appeal shall be delivered to the Director of Defence Counsel Services within 21 days after the delivery of the Notice of Appeal.

(6) The application should be accompanied by a legal opinion provided by the legal counsel who represented the accused at the court martial or the Court Martial Appeal Court, indicating whether or not the appeal has professional merit.

(7) The Director of Defence Counsel Services may make a recommendation to the Committee in respect of the disposal of any application.

(8) The Committee shall approve the provision of legal counsel by the Director of Defence Counsel Services if the majority of the members of the Committee determine that the appeal has professional merit.

(9) If the Committee does not approve the provision of legal counsel, and the applicant has been sentenced to imprisonment or detention, the Committee shall provide the applicant and the Director of Defence Counsel Services with a written summary of the reasons for the decision. In any other case, the Committee may provide the applicant with a written summary of the reasons.

(10) There is no right to submit a grievance in respect of any matter under this article.

(11) The members of the Committee who are not members of the Canadian Forces nor employees of the Government of Canada shall be paid:

  1. the remuneration fixed by the Governor in Council; and
  2. travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence, in accordance with the Travel Directive issued by the Treasury Board as amended from time to time.

(G) (P.C. 2008-1015 of 5 June 2008 effective 5 June 2008)

101.22 – REPRESENTATION OF ACCUSED

(1) Every accused who is to be tried by court martial is entitled to:

  1. be represented by legal counsel who is a barrister or advocate with standing at the bar of a province; and
  2. have an adviser to assist the accused, both before and during trial, in respect of any technical or specialized aspect of the case.

(2) When an application is forwarded to a referral authority under article 109.03 (Application to Referral Authority for Disposal of a Charge), the commanding officer of the accused shall cause the accused to be advised of the application and inquire of the accused whether the accused:

  1. desires legal counsel to be appointed by the Director of Defence Counsel Services to represent him;
  2. intends to retain legal counsel at his or her own expense; or
  3. does not require legal counsel at this time.

(3) When the accused desires to have legal counsel appointed by the Director of Defence Counsel Services, the commanding officer shall ascertain whether the accused desires a particular legal officer assisting the Director to act as legal counsel, or whether the accused is willing to accept any legal officer assisting the Director to represent him.

(4) The commanding officer shall advise the Director of Defence Counsel Services of the accused's wishes.

(5) Where the accused has requested the services of a particular legal officer, the Director of Defence Counsel Services shall endeavour to have that officer made available for that purpose. If the particular officer requested by the accused is not available, the Director shall ensure that another legal officer is made available.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTE

Under Chapter 112 (Procedure at Courts Martial), the adviser is not permitted to take any part in the proceedings before the court except that he may address the court in mitigation of punishment. He may be of any rank or may be a civilian.

(C) (1 September 1999)

101.23 – 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. 1999-1305 of 8 July 1999 effective 1 September 1999)

101.24 – SCOPE OF DEFENCE

The court shall allow the accused to make full answer and defence.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTE

An accused has the right to a fair trial and should be allowed latitude in making a defence, particularly when not represented by legal counsel. While the defence is bound by the normal rules of evidence, the court should not interpret these so strictly as to prejudice the accused's right to make a full and complete defence. This should not, however, be regarded as conferring on the accused the right of insisting on the reception by the court of clearly irrelevant evidence or evidence having no probative value.

(C) (1 September 1999)


Section 7 – Duties and Functions of the Court Martial Administrator

101.25 – APPOINTMENT OF COURT MARTIAL ADMINISTRATOR

Section 165.18 of the National Defence Act provides:

"165.18 There shall be a person appointed to be the Court Martial Administrator."

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

101.26 – DUTIES AND FUNCTIONS OF COURT MARTIAL ADMINISTRATOR

(1) Section 165.19 of the National Defence Act provides:

"165.19 (1) When a charge is preferred, the Court Martial Administrator shall convene a court martial in accordance with the determination of the Director of Military Prosecutions under section 165.14 and, in the case of a General Court Martial or a Disciplinary Court Martial, shall appoint its members.

(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."

(2) For the purposes of subsection 165.19(2) of the National Defence Act, the Court Martial Administrator shall:

  1. manage the Office of the Chief Military Judge and supervise personnel within the Office of the Chief Military Judge, other than military judges;
  2. assign a court reporter for each court martial or other hearing before a military judge;
  3. control and maintain the schedule for courts martial and other hearings before a military judge;
  4. maintain a file in respect of each court or other hearings before a military judge; and
  5. retain the recording and minutes of proceedings of each court martial and other hearing before a military judge (see article 112.66 – Minutes of Proceedings).

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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 September 1999)

(101.27 TO 101.99 INCLUSIVE: NOT ALLOCATED)

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