QR&O: Volume II - Chapter 104 Punishments and Sentences

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Amendment List:

  • 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  • 1 September 2018 – article and notes repealed: 104.01
  • 1 September 2018 – heading repealed: Section 2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  • 1 September 2018 – paragraph repealed : 104.13(2)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  • 1 September 2018 – heading repealed: Section 3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  • 1 September 2018 – note repealed: 104.14
  • 1 September 2018 – heading repealed: Section 4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  • 1 September 2018 – notes repealed: 104.15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:

(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(G) [104.01: repealed by P.C. 2018-433 effective 1 September 2018]

(C) [Notes to article 104.01: repealed on 1 September 2018]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]

NOTES

(A) Limitations upon the powers of punishment of commanding officers and superior commanders are set out in Chapter 108 (Summary Proceedings).

(B) Provisions relating to punishments of imprisonment and detention are set out in Chapter 113 (Suspension of Punishment and Intermittent Sentences) and Chapter 114 (Imprisonment and Detention) and provisions relating to the review of findings and punishments are set out in Chapter 116 (Review of Findings and Punishments).

(C) [1 September 1999; 1 September 2018]

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 104.18Computation 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) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty's service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Part, 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]

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 104.18Computation of Term of Incarceration) for the computation of the term of a punishment of detention.

(C) [23 April 2001; 1 September 2018 – Note (C)]

104.10 – REDUCTION IN RANK

(1) Section 143 of the National Defence Act provides:

“143. (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.

(2) The punishment of reduction in rank does not

(a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and

(b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.”

(2) The lowest rank to which a non-commissioned member above the rank of private may be reduced is the rank of private.

(3) In the case of a punishment of reduction to the rank of private, the offender shall hold the highest classification in that rank.

(4) Where a punishment of reduction in rank is imposed, the service tribunal shall specify the rank to which the offender is reduced.

(G) [P.C. 1999-1305 effective 1 September 1999]

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 service tribunal that imposes the fine.

(3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.”

(C) [1 September 1999]

NOTE

See also articles 208.20 (Fines Imposed by Service Tribunal) and 208.201 (Recovery of Fines).

(C) [1 September 2018]

104.13 – MINOR PUNISHMENTS

(1) 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.

(2) The commanding officer of a base, unit or element shall ensure that rules governing persons undergoing minor punishments are issued, that the rules are made known to those persons and that they are enforced.

(3) Only officers may supervise and administer minor punishments imposed on officer cadets.

(4) The minor punishments that a court martial may impose are subject to the conditions prescribed in the table to article 108.24 (Powers of Punishment of a Commanding Officer).

(5) [Repealed]

(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)]

NOTES

(A) The rules respecting minor punishments are set out in Sections 7 and 9 of Chapter 108 (Summary Proceedings).

(B) The goal of minor punishments is to correct the conduct of service members who have committed service offence of a minor nature while allowing those members to remain productive members of the unit.

(C) The role of rules for the administration of minor punishments is vital. The rules are the vehicle through which commanding officers may

(i) tailor, to meet unit requirements, a programme of extra work and drill to improve the military efficiency and discipline of unit members convicted of minor service offences, and

(ii) define the geographic limits within which a member undergoing the punishment of stoppage of leave or confinement to ship or barracks must remain and the routine applicable to members serving those punishments.

(D) Commanding officers must exercise care to ensure that the rules that they issue governing the administration of minor punishments are not inconsistent with the provisions respecting minor punishments as set out in article 108.35 (Extra Work and Drill), 108.36 (Stoppage of Leave) and 108.37 (Confinement to Ship or Barracks). For example, while it may be appropriate to require a member undergoing a punishment of stoppage of leave during a weekend to report to a specified authority, it would not be appropriate to require the member to report so often that the nature of the punishment was effectively changed to that of confinement to ship or barracks.

(C) [1 September 1999]


Section 2 – Sentencing

104.14 – PURPOSES AND PRINCIPLES OF SENTENCING BY SERVICE TRIBUNALS

Sections 203.1 to 203.4 of the National Defence Act provide:

“203.1 (1) The fundamental purposes of sentencing are

(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

(b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

(2) The fundamental purposes shall be achieved by imposing just sanctions 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;

(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 and 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 A service tribunal that imposes a sentence shall also take into consideration the following 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 service tribunal 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]

(C) [Note to article 104.14: repealed on 1 September 2018]

104.15 – ABSOLUTE DISCHARGE

Sections 203.8 of the National Defence Act provides:

“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 service tribunal 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 service tribunal 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) in the case of a direction to discharge made by a court martial, 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]

(C) [Notes to article 104.15: repealed on 1 September 2018]

104.16 – ONE SENTENCE ONLY

Sections 203.95 of the National Defence Act provides:

“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]

NOTES

(A) A service tribunal may pass only one sentence, which may include more than one type of punishment but must not include a particular punishment for a particular offence. For example, if there are three findings of guilty and the appropriate sentence is 15 days detention and a reduction in rank, it is passed as such rather than as 10 days detention for the first offence, five days detention for the second offence and reduction in rank for the third offence.

(B) When passing a sentence involving more than one type of punishment, a service tribunal should pronounce the punishment that is highest on the scale of punishments first (see article 104.02 – Scale of Punishments).

(C) [1 September 2018]

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]

104.18 – COMPUTATION OF TERM OF INCARCERATION

Sections 204 of the National Defence Act provides:

“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

104.19 – CRIMINAL RECORD

Section 249.27 of the National Defence Act provides:

“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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