QR&O: Volume II - Chapter 104 Punishments and Sentences
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- 20 June 2022 – repealed notes: 104.02
- 20 June 2022 – replaced subsection: 104.08 (English version only)
- 20 June 2022 – repealed article: 104.10
- 20 June 2022 – replaced article and note: 104.12
- 20 June 2022 – replaced article: 104.13
- 20 June 2022 – repealed notes: 104.13
- 20 June 2022 – new articles: 104.131 to 104.133
- 20 June 2022 – replaced article: 104.14
- 20 June 2022 – replaced article: 104.15
- 20 June 2022 – repealed notes: 104.16
- 28 June 2019 – article amended: 104.14
- 28 June 2019 – article amended: 104.19
- 1 September 2018 – heading amended: Section 1
- 1 September 2018 – article and notes repealed: 104.01
- 1 September 2018 – heading repealed: Section 2
- 1 September 2018 – new notes (A) and (B): 104.02
- 1 September 2018 – new note (C): 104.04
- 1 September 2018 – article amended: 104.09
- 1 September 2018 – new note (C): 104.09
- 1 September 2018 – new note: 104.12
- 1 September 2018 – paragraph amended : 104.13(1)
- 1 September 2018 – paragraph repealed : 104.13(2)
- 1 September 2018 – paragraphs (3) to (5) renumbered as (2) to (4): 104.13
- 1 September 2018 – heading repealed: Section 3
- 1 September 2018 – new heading: Section 2
- 1 September 2018 – article amended: 104.14
- 1 September 2018 – note repealed: 104.14
- 1 September 2018 – heading repealed: Section 4
- 1 September 2018 – article amended: 104.15
- 1 September 2018 – notes repealed: 104.15
- 1 September 2018 – article amended: 104.16
- 1 September 2018 – new notes (A) and (B): 104.16
- 1 September 2018 – new articles: 104.17 and 104.18
- 1 September 2018 – new heading: Section 3
- 1 September 2018 – new article:104.19
- 1 June 2014 – replaced article and note: 104.06
- 1 June 2014 – replaced article and note: 104.07
- 14 June 2013 – article amended: 104.06
- 14 June 2013 – article amended: 104.16
- 5 June 2008 – article amended: 104.13
History:
- ARCHIVED – Historical version: 28 June 2019 to 19 June 2022
- ARCHIVED - Historical version for the period of 1 September 2018 to 27 June 2019
- ARCHIVED – Historical version for the period of 1 June 2014 to 31 August 2018
- ARCHIVED – Historical version for the period of 14 June 2013 to 31 May 2014
- ARCHIVED – Historical version for the period 5 June 2008 to 13 June 2013
- ARCHIVED – Historical version for the period 1 September 1999 to 4 June 2008
(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)
Section 1 – Punishments
(G) [104.01: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [Notes to article 104.01: repealed on 1 September 2018]
104.02 – SCALE OF PUNISHMENTS
Subsection 139(1) of the National Defence Act provides:
“139. (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
(a) imprisonment for life;
(b) imprisonment for two years or more;
(c) dismissal with disgrace from Her Majesty's service;
(d) imprisonment for less than two years;
(e) dismissal from Her Majesty's service;
(f) detention;
(g) reduction in rank;
(h) forfeiture of seniority;
(i) severe reprimand;
(j) reprimand;
(k) fine; and
(l) minor punishments.”
(C) [1 September 1999; 1 September 2018; 20 June 2022 – Notes to 104.02 are repealed]
104.03 – MEANING OF "LESS PUNISHMENT"
Subsection 139(2) of the National Defence Act provides:
“139. (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression “less punishment” means any one or more of the punishments lower in the scale of punishments than the specified punishment.”
(C) [1 September 1999]
104.04 – IMPRISONMENT FOR SHORTER TERM
Section 140 of the National Defence Act provides:
“140. Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.”
(C) [1 September 1999]
NOTES
(A) Although specialized treatment and counselling programmes to deal with drug and alcohol dependencies and similar health problems will be made available to a person serving a term of imprisonment, a member serving a sentence that includes imprisonment will in most cases be considered unfit for further military service. As a result, service prisoners and service convicts will ordinarily not be subjected to the same regime of training that service detainees undergo. In certain cases, exceptions may be made for service prisoners serving a short term of imprisonment provided that it has either been decided to retain the member or no decision to release the member has been made but the circumstances suggest that retention in the Canadian Forces is likely. A punishment of imprisonment will be considered to be of short duration where the term does not exceed 90 days.
(B) Service prisoners and service convicts typically require an intensive programme of retraining and rehabilitation to equip them for their return to society following completion of the term of incarceration. Civilian prisons and penitentiaries are uniquely equipped to provide such opportunities to inmates. Therefore, to facilitate their reintegration into society, service prisoners and service convicts who are to be released from the Canadian Forces will typically be transferred to a civilian prison or penitentiary as soon as practical within the first 30 days following the date of sentencing. The member will ordinarily be released from the Canadian Forces before such a transfer is effected.
(C) Refer to section 204 of the National Defence Act (see article 104.18 – Computation of Term of Incarceration) for the computation of the term of a punishment of imprisonment.
(C) [23 April 2001; 1 September 2018 – Note (C)]
104.05 – OPTIONAL PUNISHMENTS ACCOMPANYING IMPRISONMENT
Sections 140.1 and 140.2 of the National Defence Act provide:
“140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty's service or a punishment of dismissal from Her Majesty's service.
(2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty's service.
140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be
(a) in the case of an officer, to the lowest commissioned rank; and
(b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.”
(C) [1 September 1999]
104.06 – IMPRISONMENT FOR LIFE
Section 226.1 of the National Defence Act provides:
“226.1 (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:
(a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;
(d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or
(e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.
(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of imprisonment for life that is imposed under this Act, and for that purpose
(a) a reference in sections 745.2 to 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and
(b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.”
(C) [1 September 1999; 1 June 2014]
NOTE
Section 226.1 of the National Defence Act provides, if an accused is sentenced to life imprisonment, for the imposition of parole ineligibility by a court martial. That section incorporates the parole ineligibility provisions of the Criminal Code to ensure that there is no disparity of treatment between service prisoners and civil prisoners with regard to parole ineligibility, sentence recommendations, ability to apply for judicial review if convicted of murder or high treason having served 15 years, and eligibility for day parole.
(C) [1 September 1999; 1 June 2014]
104.07 – POWER OF COURT MARTIAL TO DELAY PAROLE
Section 226.2 of the National Defence Act provides:
“226.2 (1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.
(2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.
(3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.
(4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
(5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.”
(C) [1 September 1999; 1 June 2014]
NOTE
For the definitions of “criminal organization offence” and “terrorism offence”, see section 2 of the National Defence Act.
(C) [1 September 1999; 1 June 2014]
104.08 – DISMISSAL WITH DISGRACE
Section 141 of the National Defence Act provides:
“141 (1) If a court martial imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, it may, in addition, despite any other provision of this Division, impose a punishment of imprisonment for less than two years.
(1.1) A punishment of dismissal with disgrace from Her Majesty's service or dismissal from Her Majesty's service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.
(2) A person on whom a punishment of dismissal with disgrace from Her Majesty's service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.”
(C) [1 September 1999; 20 June 2022 – Subsection 141 (1)]
NOTE
The punishment of dismissal from Her Majesty's service does not carry with it the incapacities accompanying the punishment of dismissal with disgrace from Her Majesty's service.
(C) [1 September 1999]
104.09 – DETENTION
Section 142 of the National Defence Act provides:
“142. (1) The punishment of detention is subject to the following conditions:
(a) detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; and
(b) no officer may be sentenced to detention.
(2) A non-commissioned member above the rank of private who is sentenced to detention is deemed to be reduced to the rank of private until the sentence of detention is completed.”
(C) [1 September 1999; 1 September 2018]
NOTES
(A) In keeping with its disciplinary nature, the punishment of detention seeks to rehabilitate service detainees, by re-instilling in them the habit of obedience in a structured, military setting, through a regime of training that emphasizes the institutional values and skills that distinguish the Canadian Forces member from other members of society. Specialized treatment and counselling programmes to deal with drug and alcohol dependencies and similar health problems will also be made available to those service detainees who require them. Once the sentence of detention has been served, the member will normally be returned to his or her unit without any lasting effect on his or her career.
(B) A term of punishment of detention should be expressed in days.
(C) Refer to section 204 of the National Defence Act (see article 104.18 – Computation of Term of Incarceration) for the computation of the term of a punishment of detention.
(C) [23 April 2001; 1 September 2018 – Note (C)]
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2022-0268 effective 20 June 2022 – 104.10 is repealed]
104.11 – FORFEITURE OF SENIORITY
Section 144 of the National Defence Act provides:
“144. Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.”
(C) [1 September 1999]
NOTES
(A) An offender cannot, by a punishment of forfeiture of seniority, be deprived of more seniority than that held in rank at the time of the imposition of the punishment.
(B) Where a punishment of forfeiture of seniority is imposed, the period of forfeiture must be expressed in terms of years, months and days, as applicable.
(C) The punishment must not include any reference to the place to which the offender is relegated in a seniority list.
(D) The current seniority list should be consulted to determine the effect of any proposed punishment of forfeiture of seniority. In some cases, the punishment of loss of even one day's seniority may be quite severe.
(E) If the effect of a punishment of forfeiture of seniority would be to place an offender among others whose seniority dates from the same day, the relative seniority as between the offender and those other persons is determined under article 3.11 (Seniority from Same Date).
(C) [1 September 1999]
104.12 – FINE
Section 145 of the National Defence Act provides:
“145 (1) A fine must be imposed in a stated amount.
(2) The terms of payment of a fine are in the discretion of the court martial that imposes the fine.
(3) The terms of payment of a fine may be varied by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.”
(C) [1 September 1999; 20 June 2022 – 104.12 is replaced]
NOTE
See also article 208.20 (Fines Imposed by Court Martial) and 208.201 (Recovery of Fines).
(C) [1 September 2018; 20 June 2022 – Note is replaced]
104.13 – MINOR PUNISHMENTS
For the purposes of section 146 of the National Defence Act, the following minor punishments are prescribed:
(a) confinement to ship or barracks;
(b) extra work and drill; and
(c) stoppage of leave.
(G) [P.C. 2008-1015 effective 5 June 2008 – (4) and (5); P.C. 2018-433 effective 1 September 2018 – (1), (2), (3), (4) and (5); P.C. 2022-0268 effective 20 June 2022 – 104.13 is replaced]
(C) [1 September 1999; 20 June 2022 – Notes to article 104.13 are repealed]
104.131 – CONFINEMENT TO SHIP OR BARRACKS
(1) A court martial that imposes a punishment of confinement to ship or barracks must specify
(a) the location where the confinement is to be carried out;
(b) any other location that the offender may go, including the offender’s place of work, a mess, fitness or health service centre; and
(c) the duration of the confinement.
(2) The punishment must not exceed 21 days.
(3) The punishment includes the punishment of extra work and drill for the same term as the term of confinement.
(G) [P.C. 2022-0268 effective 20 June 2022]
104.132 – EXTRA WORK AND DRILL
(1) A court martial that imposes a punishment of extra work and drill must specify which one or more of the following tasks the offender must perform:
(a) normal duties for longer periods than would have been required of the offender if the punishment had not been imposed;
(b) any other useful extra work;
(c) extra drill.
(2) The punishment must not exceed 14 days.
(3) On days on which the offender is scheduled for duty, the punishment may only extend the offender’s duty day by a maximum of four consecutive hours.
(4) If the punishment falls on a day on which the offender is not scheduled to perform duty, the offender must only perform a maximum of four consecutive hours of the punishment on that day. For greater certainty, this day will be counted as one day towards the completion of the term of the punishment.
(G) [P.C. 2022-0268 effective 20 June 2022]
104.133 – STOPPAGE OF LEAVE
(1) The punishment of stoppage of leave may only be imposed for up to 30 days.
(2) Annual, accumulated, special and short leave must not be granted during the term of the punishment.
(3) Days of leave granted other than those set out at paragraph (2) are not counted towards completion of the term of the punishment.
(G) [P.C. 2022-0268 effective 20 June 2022]
Section 2 – Sentencing
104.14 – PURPOSES AND PRINCIPLES OF SENTENCING BY COURTS MARTIAL
Sections 203.1 to 203.4 of the National Defence Act provide:
“203.1 (1) The fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.
(2) The fundamental purpose of sentencing is to be achieved by imposing just punishments that have one or more of the following objectives:
(a) to promote a habit of obedience to lawful commands and orders;
(b) to maintain public trust in the Canadian Forces as a disciplined armed force;
(c) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(d) to deter offenders and other persons from committing offences;
(e) to assist in rehabilitating offenders;
(f) to assist in reintegrating offenders into military service;
(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;
(h) to provide reparations for harm done to victims or to the community; and
(i) to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.
203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
203.3 Sentences must be imposed in accordance with the following other principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that
(i) the offender, in committing the offence, abused their rank or other position of trust or authority,
(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(iii) the offender, in committing the offence, abused their spouse or common-law partner,
(iv) the offender, in committing the offence, abused a person under the age of 18 years,
(v) the commission of the offence resulted in substantial harm to the conduct of a military operation,
(vi) the offence was committed in a theatre of hostilities,
(vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(viii) the offence was a terrorism offence;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;
(c.1) all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders;
(d) a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces; and
(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.
203.4 When a court martial imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”
(C) [1 September 1999; 1 September 2018; 28 June 2019; 20 June 2022 – 104.14 is replaced]
(C) [Note to article 104.14: repealed on 1 September 2018]
“203.8 (1) If an accused person pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court martial before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.
(2) If a court martial directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence, except that
(a) they may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Minister may appeal from the decision not to convict the offender of the offence as if that decision were a finding of not guilty in respect of the offence; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
(3) A reference in any Act of Parliament to a discharge under section 730 of the Criminal Code is deemed to include an absolute discharge under subsection (1).”
(C) [1 September 1999; 1 September 2018; 20 June 2022 – 104.15 is replaced]
(C) [Notes to article 104.15: repealed on 1 September 2018]
“203.95 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, if the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.”
(C) [1 September 1999; 1 September 2018]
(C) [1 September 1999; 1 September 2018; 20 June 2022 – Notes to 104.16 are repealed]
104.17 – INCARCERATION UNDER MORE THAN ONE SENTENCE
Sections 149 of the National Defence Act provides:
“149. Where a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.”
(C) [1 September 2018]
“204. (1) Subject to subsections (3) and 148(1) and sections 215 to 217, the term of a punishment of imprisonment or detention shall commence on the day on which the service tribunal pronounces sentence on the offender.
(2) The only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.
(3) Where a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.”
(C) [1 September 2018]
Section 3 – Criminal Record
“249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:
(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:
(i) a severe reprimand,
(ii) a reprimand,
(iii) a fine not exceeding basic pay for one month, or
(iv) a minor punishment;
(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.
(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.”
(C) [1 September 2018; 28 June 2019]
[104.20 to 104.99: not allocated]
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