QR&O: Volume II – Chapter 105 – Arrest and Pre-Trial Custody

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 – replaced note (A): 105.01
• 20 June 2022 – replaced subsection: 105.05
• 20 June 2022 – new paragraph to subsection: 105.05
• 20 June 2022 – replaced by new form: 105.06
• 20 June 2022 – repealed article: 105.12
• 20 June 2022 – replaced article: 105.12
• 20 June 2022 – new article: 105.121
• 20 June 2022 – new article: 105.211
• 20 June 2022 – replaced article: 105.22
• 20 June 2022 – new article: 105.221
• 20 June 2022 – replaced subsection: 105.23
• 20 June 2022 – replaced notes: 105.291
• 20 June 2022 – new article : 105.2911
• 20 June 2022 – replaced article: 105.303
• 1 September 2018 – paragraph amended: 105.04(2)
• 1 September 2018 – new article and note: 105.041
• 1 September 2018 – new heading: Section 4
• 1 September 2018 – article amended: 105.23
• 1 September 2018 – notes repealed: 105.23
• 1 September 2018 – heading repealed: Section 4
• 1 September 2018 – new heading: Section 5
• 1 September 2018 – subparagraph amended: 105.27(2)(a)
• 1 September 2018 – paragraph amended: 105.27(11)
• 1 September 2018 – paragraph repealed: 105.28(2)
• 1 September 2018 – paragraph (1) renumbered as article: 105.28
• 1 September 2018 – new heading: Section 6
• 1 September 2018 – article amended: 105.29
• 1 September 2018 – new article and notes: 105.291
• 1 September 2018 – new articles: 105.292 to 105.298
• 1 September 2018 – heading repealed: Section 5
• 1 September 2018 – new heading: Section 7
• 1 September 2018 – new article: 105.301
• 1 September 2018 – new heading: Section 8
• 1 September 2018 – new articles: 105.302 and 105.303
• 1 September 2018 – heading repealed: Section 6
• 1 September 2018 – new heading: Section 9
• 1 June 2014 – repealed article: 105.03
• 1 June 2014 – new article and note: 105.03
• 1 June 2014 – new article: 105.031
• 1 June 2014 – replaced article heading: 105.04
• 1 June 2014 – amended article notes (C) and (D): 105.04
• 1 June 2014 – amended article: 105.14
• 1 June 2014 – amended article: 105.15
• 1 June 2014 – amended article: 105.23 (French version only)
• 26 March 2009 – new article: 105.062
• 18 July 2008 – amended Article: 105.061
• 5 June 2008 – amended Article: 105.18
• 5 June 2008 – amended Article: 105.23

History:

• ARCHIVED – Historical version for the period of 1 September 2018 to 19 June 2022
• ARCHIVED – Historical version for the period of 1 June 2014 to 31 August 2018
• ARCHIVED – Historical version for the period of 26 March 2009 to 31 May 2014
• ARCHIVED – Historical version for the period 18 July 2008 to 25 March 2009
• ARCHIVED – Historical version for the period 5 June 2008 to 17 July 2008
• ARCHIVED – Historical version for the period 14 March 2002 to 4 June 2008

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

Section 1 – Arrest

105.01 – PERSONS SUBJECT TO ARREST

Subsection 154(1) of the National Defence Act provides:

(C) [1 September 1999]

NOTES

(A) All persons subject to the Code of Service Discipline (see article 101.21 – Persons Subject to the Code of Service Discipline) are liable to be arrested in the circumstances set out in this article.

(B) A person who has been or may be charged need not necessarily be placed or retained under arrest. The circumstances surrounding each case should be considered in order to determine whether arrest is appropriate.

(C) [1 September 1999; 20 June 2022 – Note A is replaced]

105.02 – ARREST OF PERSONS WHO HAVE CEASED TO BE SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Subsection 155(3) of the National Defence Act provides:

(C) [1 September 1999]

NOTE

A person must be designated under this article by a commanding officer for that person to be authorized under this article to arrest or order the arrest of a person who has ceased to be subject to the Code of Service Discipline.

(C) [1 September 1999]

105.03 – ARREST AND HAND OVER OF DEPENDANTS IN FOREIGN COUNTRIES

Section 272 of the National Defence Act provides:

(G) [105.03: repealed by P.C. 2014-0575 effective 1 June 2014]

(C) [1 June 2014]

NOTE

Only members of the military police (see article 22.02 – Appointment as Members of Military Police) may effect an arrest under this article.

(C) [1 September 1999; 1 June 2014]

105.031 – DEFINITION OF DEPENDANTS

For the purposes of section 272 of the National Defence Act, “dependants” in respect of an officer or non- commissioned member means

(a) the officer’s or non-commissioned member’s spouse or common-law partner; and

(b) any other person wholly or mainly maintained by the officer or non-commissioned member or in their custody, charge or care.

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

105.04 – POWERS OF ARREST WITHOUT WARRANT

(1) Subsections 155(1) and (2) of the National Defence Act provide:

(2) Subsection 156(1) of the National Defence Act provides in part:

(3) Subsection 252(2) of the National Defence Act provides:

(C) [1 September 1999; 1 June 2014 – heading; 1 September 2018 – (2)]

NOTES

(A) Paragraph (3) is an additional power of arrest to be exercised when circumstances do not permit dealing with a suspected absentee or deserter according to the usual military procedure.

(B) Members of the Canadian Forces may, under certain circumstances, be authorized to arrest and hand over members of a visiting force (see section 10 of the Visiting Forces Act in QR&O Volume IV, Appendix 2.1).

(C) The officers and non-commissioned members referred to in paragraph (2) are those prescribed in article 22.02 (Appointment as Members of Military Police).

(D) For the power of officers and non-commissioned members appointed as members of the military police to arrest and hand over dependants, see article 105.03 (Arrest and Hand over of Dependants in Foreign Countries).

(C) [1 September 1999; 1 June 2014 – Notes (C) and (D)]

105.041 – LIMITATIONS ON POWERS OF ARREST WITHOUT WARRANT

(1) Subsection 155(2.1) of the National Defence Act provides:

(2) Subsection 156(2) of the National Defence Act provides:

(C) [1 September 2018]

NOTE

The expressions “superior officer” and “serious offence” are defined in section 2 of the National Defence Act.

(C) [1 September 2018]

105.05 – ISSUE OF WARRANT FOR ARREST

Section 157 of the National Defence Act provides:

(C) [1 September 1999; 20 June 2022 – Subsection 157 (1) is replaced and 157 (2.1) added]

NOTE

Any person authorized in a warrant for arrest, and any one else called upon by that person to assist in the execution of the warrant, is empowered to arrest the person or persons named in the warrant.

(C) [1 September 1999]

105.06 – FORM OF WARRANT FOR ARREST

Every warrant issued for the purpose of effecting an arrest under article 105.05 (Issue of Warrant for Arrest) should be in the following form:

WARRANT FOR ARREST

^{_{(Section 157 of the National Defence Act)}}

^{To (person authorized to execute warrant):}

^{This warrant is issued for the arrest of (service number, rank and name of person), referred to in this warrant as the person who is alleged to have committed a service offence.}

^{Because the person who is alleged to have committed a service offence has committed, is believed on reasonable grounds to have committed or is charged with having committed the following service offence (set out briefly the service offence alleged);}

^{And because the person who is alleged to have committed a service offence is not a member of, serving with, or attached or seconded to my unit;}

^{□   (Check if applicable) And although the person who is alleged to have committed a service offence holds a higher rank than mine, I certify that the exigencies of the service require me to issue this warrant;}

^{□   (Check if applicable) And because there are reasonable grounds to believe that the person who is alleged to have committed a service offence is or will be present in (specify dwelling house), this warrant is also issued to authorize you to enter the dwelling-house for the purpose of arresting the person, subject to the condition that you may not enter the dwelling-house unless you have, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested is present in the dwelling-house.}

^{Therefore, you are ordered, in Her Majesty’s name, to immediately arrest the person who is alleged to have committed a service offence and to take them to the following place to be dealt with according to law:}

^{□   (Check if applicable) the following unit: (name of unit);}

^{□    (Check if applicable) the nearest unit or other element of the Canadian Forces;}

^{□    (Check if applicable) the nearest civil jail.}

^{Signed on (date), at (place).}

^{------------------------------------}

^{(Signature of commanding officer or officer to whom a commanding officer has delegated the power to conduct a summary hearing)}

^{--------------------------------------}

^{(service number, rank and name)}

^{--------------------------------------}

^{(appointment and unit)}

(G) [P.C. 2002-339 effective 14 March 2002; P.C. 2022-0268 effective 20 June 2022 – the form titled “WARRANT FOR ARREST” is replaced]

105.061 – JUDICIAL ARREST WARRANT

(1) Section 249.23 of the National Defence Act provides:

(2) Every warrant issued for the purposes of section 249.23 of the National Defence Act shall be in the following form:

WARRANT FOR ARREST – NON APPEARANCE OF ACCUSED PERSON

To the peace officers in (base or unit / territorial division)

This warrant is issued for the arrest of
(service number and rank (if applicable) and name of accused person)
hereinafter called the accused person.

Whereas the accused person has been charged with the offence(s) contained in the charge sheet signed by (name of authorized officer), on the ___ day of (month), (year);

And whereas a (General or Standing) Court Martial was convened to hear the charge(s)
on the ____ day of (month) , (year) at (time),
at (location) by convening order dated the ____ day of (month), (year);

And whereas:

(a) the accused person has failed to appear before the (General or Standing) Court Martial as summoned or ordered;

or

(b) the accused person, having appeared before the Court Martial, has subsequently failed to attend before the Court Martial as required.

This is therefore to command you, in Her Majesty's name, forthwith to arrest the said accused person and to bring the accused person before this (General or Standing) Court Martial to be dealt with according to law.

(Complete only if applicable and if the requirements of s. 34.1 of the Interpretation Act have been satisfied.)

Whereas there are reasonable grounds to believe that the accused person is or will be present in
(describe dwelling-house);

This warrant is also issued to authorize you to enter the dwelling-house for the purpose of arresting or apprehending the accused person, subject to the condition that you may not enter the dwelling-house unless you have, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.

Dated this ____ day of (month), (year) at (location).

(signature of presiding military judge)

(General or Standing) Court Martial

(G) [P.C. 2008-1319 effective 18 July 2008]

105.062 – WARRANT FOR ARREST – FAILURE TO APPEAR FOR SAMPLES TO BE TAKEN

For the purpose of subsection 196.161(1) of the National Defence Act, a warrant for arrest shall be in the following form:

WARRANT FOR ARREST –
FAILURE TO APPEAR FOR THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

To the peace officers of (base, unit or territorial division):

This warrant is issued for the arrest of (service number and rank (if applicable) and name), in this warrant called the “offender”.

Whereas the offender failed to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4) of the National Defence Act to submit to the taking of samples of bodily substances;

This is, therefore, to command you, in Her Majesty's name, to arrest the offender without delay in order to allow the samples of bodily substances to be taken.

Dated on (day/month/year) at (location).

(signature of presiding military judge)
(rank and name of presiding military judge)

(General or Standing) Court Martial

(G) [P.C. 2009-0430 effective 26 March 2009]

105.07 – DUTY TO CARRY OUT ORDERS OF ARREST

An officer or non-commissioned member who receives an order from a superior to effect an arrest shall carry out that order notwithstanding that the member could not have made the arrest on the member’s responsibility.

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

105.08 – INFORMATION PROVIDED TO A PERSON ARRESTED OR DETAINED

(1) Subject to paragraph (2), a person who is arrested or detained shall, without delay, be informed:

(a) that the person is arrested or detained;

(b) of the reason for the arrest or detention;

(c) that the person has the right to retain and instruct counsel without delay;

(d) that the person has the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services or other duty counsel in the jurisdiction where the person is arrested or detained, and how duty counsel may be contacted; and

(e) of the existence and availability of Legal Aid plans, where applicable.

(2) When circumstances, such as the unconsciousness of the person arrested or detained, or the person’s attempted escape from custody, make it impossible to comply with paragraph (1), the person arrested or detained shall be given the information as soon as it is possible to do so.

(3) The person arrested or detained shall be given an opportunity to contact counsel as soon as practical under the circumstances.

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

NOTES

(A) The information under paragraph (1) of this article should be given in the following form:

It is not essential to use this exact wording as long as the person is made aware of the facts set out in paragraph (1) of this article. However, every effort should be made to follow this format to ensure that proper information is given.

(B) Only general terms need to be used when informing the person of the reason for his arrest, e.g., “for being insubordinate”.

(C) Article 105.12 (Release of Arrested Person Unless Conditions Necessary for Retention in Custody Met) requires the person making an arrest to determine, as soon as practicable after the arrest, whether the arrested person is to be retained in custody.

(C) [1 September 1999]

105.09 – USE OF FORCE IN CARRYING OUT ARREST

Subsection 154(2) of the National Defence Act provides:

(C) [1 September 1999]

NOTE

Subsection 154(2) of the National Defence Act authorizes the use of only such force as is reasonably necessary to effect an arrest. It does not authorize the use of force that under the circumstances would be considered excessive. A person using excessive force is answerable in law for the excess. Whether the force used is excessive is a question of fact in each case.

(C) [1 September 1999]

105.10 – ARREST OF SUBORDINATE

A member who must arrest a member junior in rank shall, if practical, obtain the assistance of one or more members of rank equal or junior to that of the member who is to be arrested and shall not, unless it becomes essential, physically participate in the arrest.

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

105.11 – SPECIAL REPORT – MEMBERS ABOVE THE RANK OF SERGEANT

Where an officer or non-commissioned member above the rank of sergeant is arrested, the commanding officer shall immediately send a report of the circumstances by message to National Defence Headquarters (Director General Military Careers).

(C) [1 September 1999]

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Section 2 – Action Following Arrest

105.12 – RELEASE OF ARRESTED PERSON UNLESS CONDITIONS NECESSARY FOR RETENTION IN CUSTODY ARE MET

Subsection 158(1) of the National Defence Act provides:

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2022-0268 effective 20 June 2022 – 105.12 is repealed ]

(C) [20 June 2022 – 105.12 is replaced]

NOTE

The mere fact that an investigation is not yet complete or the mere possibility of the alleged offender going absent without leave will not normally be considered sufficient reason to hold an alleged offender in custody.

(C) [1 September 1999]

105.121 – INFORMATION TO ARRESTED PERSON

The person that makes an arrest must inform the arrested person whether or not they will be held in custody.

(G) [P.C. 2022-0268 effective 20 June 2022 – 105.121]

105.13 – RETENTION IN CUSTODY

Subsection 158(2) of the National Defence Act provides:

(C) [1 September 1999]

NOTES

(A) A person who is to be retained in custody should be placed in service custody rather than civil custody.

(B) Service custody includes custody in a cell, guardroom or any other suitable place at a base, unit or other element.

(C) [1 September 1999]

105.14 – DUTY TO RECEIVE INTO SERVICE CUSTODY

Subsection 158(3) of the National Defence Act provides:

(C) [1 September 1999]

105.15 – ACTION UPON DECISION TO RETAIN IN CUSTODY

A person making an arrest who determines that the arrested person is to be retained in custody shall, as soon as practicable, ensure that the arrested person is taken under escort and committed into the custody of an officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police (see article 22.02 – Appointment as Members of Military Police).

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2014-0575 effective 1 June 2014]

105.16 – ACCOUNT IN WRITING

(1) Subsection 158(4) of the National Defence Act provides:

(2) When a person is committed into service custody, the person shall be:

(a) told the name and rank of the person who ordered the retention in custody; and

(b) given a copy of the account in writing.

(3) The account in writing should be in the following form:

ACCOUNT IN WRITING

To: (officer or non-commissioned member i/c guard or guard-room)

(service number and rank (if applicable) and name of person arrested)

was arrested by me at (time) hours on (date) and is committed by me
to your custody at (time) hours on (date) for the following reasons:

At (time) hours on (date) I determined that the arrested person should be retained in custody
having regard to all the circumstances, including those set out in article 105.12 (Release of Arrested Person Unless Conditions for Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces, specifically because:

(see Note)

Time of Delivery
of account in writing:_____hours

Date:_____

(officer or non-commissioned member committing the arrested person, name, appointment and unit)

NOTE

As this account in writing may be the only information available at the time the decision to retain the arrested person in custody is reviewed, these reasons should be given in as much detail as possible having regard to the circumstances, including those set out in paragraph (1) of article 105.12 (Release of Arrested Person Unless Conditions Necessary For Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces.

(4) A sample account in writing is as follows:

SAMPLE ACCOUNT IN WRITING

To: Sgt B.A. Smith

D12 234 678 Pte B. Brown was arrested by me at 2030 hours on 18 Jul 1999 and is committed by me; to your custody at 2045 hours on 18 Jul 1999 for the following reasons:

While intoxicated he struck Cpl. R. Butler, a superior officer in the Junior Ranks Mess this evening at 2915 hours.

At 2030 hours on 18 July 1999 I determined that the arrested person should be retained in custody
having regard to all the circumstances, including those set out in article 105.12 (Release of Arrested Person Unless Conditions for Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces, specifically because:

Pte Brown was still under the influence of alcohol.
He remained belligerent, and I was concerned that he would repeat the offence.

(see Note)

Time of Delivery
of account in writing: 2045 hours

Date: 18 Jul 1999

(signed) J.P. Robert, MCpl, Duty Corporal, 3 RCR

NOTE

As this account in writing may be the only information available at the time the decision to retain the arrested person in custody is reviewed, these reasons should be given in as much detail as possible having regard to the circumstances, including those set out in paragraph (1) of article 105.12 (Release of Arrested Person Unless Conditions Necessary For Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces.

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

105.17 – REPORT OF CUSTODY TO CUSTODY REVIEW OFFICER

Section 158.1 of the National Defence Act provides:

(C) [1 September 1999]

NOTE

Section 153 of the National Defence Act defines “custody review officer” in respect of a person in custody to mean:

(a) the officer who is the person's commanding officer, or an officer who is designated by that officer; or

(b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer.

(C) [1 September 1999]

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Section 3 – Initial Review

105.18 – REVIEW OF REPORT OF CUSTODY

Section 158.2 of the National Defence Act provides:

(C) [1 September 1999]

NOTE

A custody review officer should obtain advice from the unit legal adviser prior to making a decision under subsection 158.2(2) of the National Defence Act.

(C) [5 June 2008]

105.19 – CONTINUING DUTY TO RELEASE

Section 158.3 of the National Defence Act provides:

(C) [1 September 1999]

105.20 – DUTY TO RETAIN IN CUSTODY IF CHARGED WITH A DESIGNATED OFFENCE

Section 158.4 of the National Defence Act provides:

(C) [1 September 1999]

NOTE

For the definition of “designated offence”, see section 153 of the National Defence Act.

(C) [1 September 1999]

105.21 – DUTY TO REVIEW WHERE NO CHARGE LAID

Section 158.5 of the National Defence Act provides:

(C) [1 September 1999]

105.211 – RELEASE WITH OR WITHOUT  CONDITIONS

Subsections 158.6(1) to (1.2) of the National Defence Act provide:

“158.6 (1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

(a) remain under military authority;

(b) report at specified times to a specified military authority;

(c) remain within the confines of a specified defence establishment or at a location within a geographical area;

(d) abstain from communicating with any witness or specified person, or refrain from going to any specified place; and

(e) comply with such other reasonable conditions as are specified.

(1.1) If the custody review officer directs that the person be released, with or without conditions, the custody review officer shall include in the direction a statement that he or she has considered the safety and security of every victim of the alleged offence.

(1.2) The custody review officer shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.”

(C) [20 June 2022 – 105.211]

105.22 – DIRECTION ON RELEASE FROM  CUSTODY

The direction on release from custody must be in the following form:

DIRECTION ON RELEASE FROM CUSTODY

_{^{(Subsection 158.6(1) of the National Defence Act)}}

^{1    Identification}

^{Surname: …………….. Given name(s): …………………}

^{Service number and rank: ……………..}

^{2    Security of victims}

^{I have considered the following factors respecting the safety and security of every victim of the alleged service offence: ………..}

^{3A Release without conditions}

^{□ I direct that you be released without conditions.}

^{3B Release subject to conditions}

^{□ I direct that you be released and, as a condition of release, direct that you comply with the conditions that are indicated below by a check mark.}

^{□ You must remain under military authority.}

^{□ You must report to (specify military authority) at (specify times).}

^{□ You must remain within the confines of (specify defence establishment or location within a geographical area).}

^{□ You must not communicate, directly or indirectly, with (victims, witnesses or other persons), except in accordance with the following conditions: .................}

^{□ You must not go to (place).}

^{□ You must comply with the following conditions (conditions for ensuring the safety and security of any victim of or witness to the alleged offence): .................}

^{□ You must comply with the following conditions: .................}

^{4    Conditions in effect}

^{The conditions indicated by a check mark on this direction on release remain in effect until they are cancelled or changed or until you have been discharged, sentenced or otherwise detained by the court (section 101.1 of the National Defence Act).}

^{5    Signatures}

^{PERSON WHO IS ALLEGED TO HAVE COMMITTED A SERVICE OFFENCE:}

^{I understand the contents of this form and agree to comply with the conditions that are indicated by a check mark.}

^{I understand that I do not have to accept the conditions and that, if I do not accept the conditions, I will be detained.}

^{Signed on (date), at (place).}

^{………………………………}

^{(Signature of person who is alleged to have committed a service offence )}

^{CUSTODY REVIEW OFFICER:}

^{Signed on (date), at (place).}

^{……………………………….}

^{(Signature of custody review officer)}

^{………………………………..}

 ^{(Rank, name, appointment and unit of custody review officer who has issued this direction)}

 (G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2022-0268 effective 20 June 2022 – 105.22 is replaced]

105.221 – EFFECT OF NOTICE OF DECISION NOT  TO LAY CHARGES

After receipt of a notice of a decision not to lay a charge, the person who directed that the person be retained in custody or who released the person with conditions under article 105.22 must without delay direct that the person who is alleged to have committed a service offence or a service infraction be released from custody or that the conditions on the person’s release be cancelled.

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

Section 4 – Duty to Act Expeditiously

105.23 – CHARGES TO BE LAID EXPEDITIOUSLY

Subsection 161(2) of the National Defence Act provides:

(C) [1 September 1999; 1 September 2018; 20 June 2022 – Subsection 161 (2) is replaced]

(C) [Notes to article 105.23: repealed on 1 September 2018]

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Section 5 – Review of Direction to Retain in Custody

105.24 – HEARING BY MILITARY JUDGE

Section 159 of the National Defence Act provides:

(C) [1 September 1999]

105.25 – NOTICE WHEN HEARING IS REQUIRED

The custody review officer shall immediately advise the nearest representative of the Director of Military Prosecutions when a person is to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

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

NOTE

During a hearing before a military judge to determine whether a person is to be retained in custody, the Canadian Forces are normally represented by counsel appointed by the Director of Military Prosecutions. However, in the absence of counsel, the custody review officer may appoint a person to represent the Canadian Forces (see paragraph (1) of article 105.27 – Procedure at Show Cause Hearing).

(C) [1 September 1999]

105.26 – COUNSEL FOR THE PERSON IN CUSTODY

(1) Every person taken before a military judge to determine whether the person is to be retained in custody is entitled to be represented by legal counsel who is a barrister or advocate with standing at the bar of a province.

(2) When a custody review officer advises the Director of Military Prosecutions that a person is to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody, the custody review officer shall inquire as to whether the person:

(a) desires legal counsel to be appointed by the Director of Defence Counsel Services;

(b) intends to retain legal counsel at his or her own expense; or

(c) does not require legal counsel.

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

(4) The custody review officer shall advise the Director of Defence Counsel Services of the person's wishes.

(5) Where the person requests 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 person in custody is not available, the Director shall ensure that another legal officer is made available.

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

105.27 – PROCEDURE AT SHOW CAUSE HEARING

(1) In this article,

“person in custody” includes, unless the context otherwise requires, the legal counsel of the person in custody; (personne sous garde); and

“representative of the Canadian Forces” means counsel appointed by the Director of Military Prosecutions or other person appointed by the custody review officer to represent the Canadian Forces. (représentant des Forces canadiennes)

(2) At the beginning of the hearing,

(a) if no order has been made under subsection 180(2) of the National Defence Act (see article 112.10 – Public Proceedings) and to the extent that accommodation permits, the public shall be admitted; and

(b) the representative of the Canadian Forces, the person in custody and the military judge shall take their places.

(3) The military judge shall identify himself and ask whether the person in custody objects to the military judge presiding at the show cause hearing, and, if there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed with any necessary changes.

(4) After any objection to the military judge has been disposed of, the judge shall:

(a) take the oath prescribed in article 112.16 (Oath to be Taken by Judge Presiding at Court Martial);

(b) swear the court reporter (see article 112.18 – Oath to be Taken by Court Reporter); and

(c) if it is proposed to have an interpreter, and if there is no objection to the interpreter (see article 112.15 – Objection to Interpreter), swear the interpreter (see article 112.19 – Oath to be Taken by Interpreter).

(5) Subject to paragraph (6), the representative of the Canadian Forces, followed by the person in custody, may make any statement that is pertinent to the hearing, and witnesses may be called first by the representative of the Canadian Forces and then by the person in custody, or by the military judge at any time if the military judge desires to hear any further evidence.

(6) If the person in custody is charged with a designated offence, the person in custody, followed by the representative of the Canadian Forces, may make any statement that is pertinent to the hearing, and witnesses may be called first by the person in custody and then by the representative of the Canadian Forces, or by the military judge at any time if the military judge desires to hear any further evidence.

(7) Subject to paragraph (8), following any action under paragraphs (5) or (6), addresses may be made to the military judge first by the representative of the Canadian Forces, and then by the person in custody, and the representative of the Canadian Forces shall have the right to make an address in reply to any address made by the person in custody.

(8) If the person in custody is charged with a designated offence, addresses may be made to the military judge first by the person in custody, and then by the representative of the Canadian Forces, and the person in custody shall have the right to make an address in reply to any address made by the representative of the Canadian Forces.

(9) If the military judge directs that the person in custody be released subject to an undertaking, the military judge shall prepare and deliver to the officer or non-commissioned member having custody of the person a Form of Direction and Undertaking (see article 105.28 – Release on the Giving of an Undertaking).

(10) If the military judge directs that no condition be imposed on release, the person in custody shall be released forthwith.

(11) If a procedural matter is not provided for in this article, the provisions of Chapter 112 apply, with any necessary changes.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (2)(a), and (11)]

NOTE

Sections 159.1 to 159.7 of the National Defence Act set out in further detail the procedures to be followed at a show cause hearing.

(C) [1 September 1999]

105.28 – RELEASE ON THE GIVING OF AN UNDERTAKING

An undertaking given pursuant to subsection 159.4 (1) of the National Defence Act should be in the following form:

FORM OF DIRECTION AND UNDERTAKING

(Subsection 159.4(1) of the National Defence Act)

Part I: Direction

It is directed that (service number and rank (if applicable) and full name of person in custody)
be released from custody upon signing the undertaking in Part 2. It is further directed that this form be presented to the person in custody without delay.

Date: ____________

Military Judge

Part 2: Undertaking

I, (service number and rank (if applicable) and full name of person in custody) undertake,
as a condition of my release from custody, to comply with the following conditions:

(a) remain under military authority;

(b) report at (specify times) to (specify military authority);

(c) remain within the confines of (specify defence establishment or location within a geographical area);

(d) abstain from communicating with (witness or specified person);

(e) refrain from going to (specify place); and

(f) (other reasonable conditions as are specified).

Date: ____________

(signature of person in custody)

(witness to signature of person in custody)

(G) [P.C. 1999-1305 effective 1 September 1999; P.C 2018-0433 effective 1 September 2018 – (1); P.C. 2018-0433 effective 1 September 2018 – (2) repealed]

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Section 6 – Review of Direction to Release From Custody

105.29 – DEFINITIONS

The following definitions apply in this section.

“Act” means the National Defence Act. (Loi)

“applicant” means a person who has been released from custody, or counsel for the Canadian Forces, who provides the Chief Military Judge with a notice of application under paragraph 105.293(1). (demandeur)

“other party” means

(a) the Director of Military Prosecutions, if the applicant is the person who has been released from custody; and

(b) the person who has been released from custody, if the applicant is counsel for the Canadian Forces.

(autre partie)

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018]

105.291 – REVIEW BY COMMANDING OFFICER OR NEXT SUPERIOR OFFICER

Subsections 158.6(2) and (3) of the Act provide:

(C) [1 September 2018]

NOTE

The commanding officer or the next superior officer to whom the commanding officer is responsible in matters of discipline should obtain advice from a legal officer before conducting a review under subsection 158.6(2) of the National Defence Act.

(C) [1 September 2018; 20 June 2022 – Notes are replaced]

105.2911 – APPLICATION FOR REVIEW OF  DIRECTION ON RELEASE

A person who applies for review of a direction on release under subsection 158.6(2) of the National Defence Act must do so in writing.

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

105.292 – REVIEW OF DIRECTIONS BY MILITARY JUDGE

Section 158.7 of the Act provides:

(C) [1 September 2018]

105.293 – NOTICE OF APPLICATION

(1) If a person who has been released from custody or counsel for the Canadian Forces wishes to apply, under subsection 158.7(1) of the Act, for a review of a direction to release, they shall provide a notice of application to the Chief Military Judge.

(2) The notice of application shall include

(a) a description of the proposed changes to the direction and the reason for the application;

(b) a copy of the direction;

(c) a description of any evidence that the applicant intends to rely on at the hearing referred to in article 105.296 (Hearing Procedure);

(d) the names of any witnesses that the applicant intends to call at the hearing; and

(e) an estimate of the length of time required to present the application.

(3) As soon as feasible after providing the notice of application to the Chief Military Judge, the applicant shall provide a copy of the notice to the other party and the commanding officer of the person who has been released from custody.

(G) [P.C. 2018-0433 effective 1 September 2018]

105.294 – REPRESENTATION OF PERSON RELEASED FROM CUSTODY

(1) Every person who has been released from custody by virtue of a direction has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application to review the direction under subsection 158.7(1) of the Act.

(2) If a person who has been released from custody wishes to apply for a review referred to in paragraph (1) and to be provided with legal counsel by the Director of Defence Counsel Services in respect of the review, the person shall notify their commanding officer and may specify a preference for a particular legal officer who assists the Director.

(3) If a commanding officer receives a copy of a notice of application under paragraph 105.293(3) from counsel to the Canadian Forces, the commanding officer shall, as soon as feasible after the person who has been released from custody has received a copy of the notice, ask the person whether they wish to be provided with legal counsel by the Director of Defence Counsel Services and, if they do, whether they have a preference for a particular legal officer who assists the Director.

(4) The commanding officer shall advise the Director of Defence Counsel Services of any request for counsel under paragraph (2) or (3) as soon as feasible.

(5) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (4), assign legal counsel to the person who has been released from custody and attempt to give effect to any specified preference for a particular legal officer.

(G) [P.C. 2018-0433 effective 1 September 2018]

105.295 – NOTICE OF HEARING

(1) The Chief Military Judge shall, as soon as feasible after the applicant confirms that they have complied with paragraph 105.293(3), ensure that a notice of hearing is provided to the applicant, the other party and the commanding officer of the person who has been released from custody.

(2) The notice of hearing shall include

(a) the date, time and place of the hearing referred to in article 105.296 (Hearing Procedure); and

(b) the name of the military judge who is assigned to preside at the hearing.

(3) The commanding officer of the person who has been released from custody shall, if the Chief Military Judge requests it, cause the notice of hearing that is to be provided to the person under paragraph (1) to be delivered to them as soon as feasible.

(4) A person who delivers a notice of hearing under paragraph (3) shall complete a confirmation of delivery in the following form:

CONFIRMATION OF DELIVERY

At (time) hours on (day, month, year), I personally delivered to (service number and rank (if applicable) and full name of the person who has been released from custody) a notice of hearing relating to an application for a review under subsection 158.7(1) of the National Defence Act.

Dated this (day, month, year) at (place).

Signature of the person who made the delivery

(Service number and rank (if applicable) and full name of the person who made the delivery)

(5) The commanding officer of the person who has been released from custody shall ensure that the completed confirmation of delivery is forwarded to the Court Martial Administrator as soon as feasible.

(G) [P.C. 2018-0433 effective 1 September 2018]

105.296 – HEARING PROCEDURE

(1) At the beginning of the hearing of an application under subsection 158.7(1) of the Act,

(a) if no order has been made to exclude the public and to the extent that accommodation permits, the public shall be admitted; and

(b) the following persons shall take their places:

(i) the applicant,

(ii) the other party, and

(iii) the military judge.

(2) The military judge shall identify themselves and ask if the applicant or the other party objects to the application being heard by the judge. Any objection shall be disposed of in accordance with article 112.14 (Objections to the Constitution of the Court Martial), with any necessary changes.

(3) The military judge shall

(a) take the oath prescribed in article 112.16 (Oath to be Taken by Judge Presiding at Court Martial);

(b) cause the court reporter to take the oath prescribed in article 112.18 (Oath to be Taken by Court Reporter), with any necessary changes;

(c) dispose of any objection to any interpreter in accordance with article 112.15 (Objection to Interpreter), with any necessary changes; and

(d) cause any interpreter to take the oath prescribed in article 112.19 (Oath to be Taken by Interpreter).

(4) The applicant, followed by the other party, may make a statement that is pertinent to the application.

(5) The applicant, followed by the other party, may present evidence, including sworn witness testimony.

(6) The military judge may call witnesses at any time if he or she wishes to hear further evidence.

(7) The applicant, followed by the other party, may make representations. The applicant may reply to any representations made by the other party.

(8) The military judge shall announce his or her decision and, after complying with the applicable obligations in article 105.298 (Obligations at Conclusion of Hearing), terminate the hearing.

(9) If a procedural matter is not provided for in this article, the provisions of Chapter 112 apply, with any necessary changes.

(G) [P.C. 2018-0433 effective 1 September 2018]

105.297 – APPEARANCE BY TECHNOLOGICAL MEANS

The military judge presiding at a hearing referred to in article 105.296 (Hearing Procedure) may, with the consent of the applicant and the other party, permit any person to appear at the hearing by any means that allows the hearing participants, including witnesses, to engage in simultaneous visual and oral communication, so long as the person who has been released from custody is given the opportunity to communicate privately with their legal counsel, if any.

(G) [P.C. 2018-0433 effective 1 September 2018]

105.298 – OBLIGATIONS AT CONCLUSION OF HEARING

(1) A military judge who makes a direction to release under subsection 158.7(1) of the Act shall

(a) cause a copy of the direction to be given to the person who has been released from custody and counsel for the Canadian Forces;

(b) explain to the person who has been released from custody any conditions that have been imposed and, if applicable, the substance of section 101.1 of the Act;

(c) if the person has been released with conditions, explain to the person that another application may be made under subsection 158.7(1) of the Act if subsection 158.7(3) of the Act is complied with; and

(d) take reasonable steps to ensure that the person who has been released from custody understands the direction and any explanations given.

(2) The direction to release may be in the following form:

DIRECTION TO RELEASE FROM CUSTODY

(Section 158.7 of the National Defence Act)

Whereas I have reviewed the direction made by (rank and name of military judge or other officer) on (day, month, year) with respect to the release from custody of (service number and rank (if applicable) and full name of person who has been released from custody);

(Choose the appropriate sentence below and delete the other sentence)

It is directed that (service number and rank (if applicable) and full name of person who has been released from custody) be released without conditions.

It is directed that (service number and rank (if applicable) and full name of person who has been released from custody) be released and, as a condition of release, that they comply with the following conditions:

(Delete conditions that do not apply)

(a) keep the peace and be of good behaviour;

(b) remain under military authority;

(c) report at (times) to (military authority);

(d) remain within the confines of (defence establishment) or at (location within a geographical area);

(e) abstain from communicating with (witness or specified person);

(f) refrain from going to (place); and

(g) (other reasonable conditions).

Dated this (day, month, year) at (place).

_____________________________________________________________________

Signature of military judge

(Rank and name of military judge)

(3) If the military judge declines to make a new direction, he or she shall remind the person who has been released from custody that they remain bound by the existing conditions of their release, if any.

(4) For greater certainty, a failure to comply with paragraph (1) does not affect the validity of the direction.

(G) [P.C. 2018-0433 effective 1 September 2018]

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Section 7 – Review by Court Martial Appeal Court Judge

105.30 – REVIEW OF DIRECTION

Section 159.9 of the National Defence Act provides:

(C) [1 September 1999]

105.301 – REPRESENTATION BY LEGAL COUNSEL

(1) Every person who has been retained in or released from custody by virtue of a direction made by a military judge under Division 3 of the Code of Service Discipline has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application to review the direction under section 159.9 of the National Defence Act.

(2) A person referred to in paragraph (1) shall, if they wish to be provided with legal counsel by the Director of Defence Counsel Services in respect of the review, notify their commanding officer.

(3) The commanding officer shall advise the Director of Defence Counsel Services of any request for counsel under paragraph (2) as soon as feasible.

(4) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (3), assign legal counsel to the person.

(G) [P.C. 2018-0433 effective 1 September 2018]

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Section 8 – Cancellation of Direction

105.302 – CANCELLATION OF DIRECTION TO RETAIN IN CUSTODY OR RELEASE WITH CONDITIONS

Section 159.91 of the National Defence Act provides:

(C) [1 September 2018]

105.303 – CIRCUMSTANCES IN WHICH A  DIRECTION IS CANCELLED

For the purposes of section 159.91 of the National Defence Act, a direction to retain a person in custody or impose conditions on their release is cancelled in the following circumstances:

(a) an officer or non-commissioned member authorized to lay charges notifies the person, in accordance with article 102.11 (Notice of Decision Not to Lay Charges), that the officer or non-commissioned member has decided not to lay any charge or has decided to lay a charge in respect of a service infraction;

(b) in the case where the person has been charged with one or more offences that are founded on the facts that led to the direction,

(i) the person is notified, under article 110.05 (Notice of Decision Not to Prefer Charge), that the Director of Military Prosecutions has decided not to prefer any charges, or

(ii) the person is notified, under paragraph 110.101(1) or before a military judge, that the Director of Military Prosecutions has withdrawn all of the charges;

(c) in the case of a direction to retain the person in custody, the military judge presiding at the person’s court martial orders that they be released from custody under paragraph 112.665(2); or

(d) the person is found not guilty, sentenced, or discharged absolutely in respect of all of the charges.

(G) [P.C. 2018-0433 effective 1 September 2018; P.C. 2022-0268 effective 20 June 2022 – 105.303 is replaced]

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Section 9 – Conditions of Pre-Trial Custody

105.31 – DUTIES WHILE IN CUSTODY

(1) An officer or non-commissioned member not on active service who is held in custody shall not be required to perform any duty except such as may be necessary to relieve the member of the charge of any cash, accounts or materiel for which the member is responsible or, in the case of a non-commissioned member, such as may be required to keep the member's cell in good order.

(2) An officer or non-commissioned member on active service who is held in custody may be ordered to perform any duties which the member might properly have been ordered to perform if the member had not been placed in custody, but care shall be taken to ensure that the member is not required, by reason only of being an alleged offender, to perform any duties in addition to those required of others.

(3) Notwithstanding anything in this article, an order given to a member held in custody to perform a duty or the performance of a duty by a member held in custody shall not relieve him from liability to be proceeded against for the offence for which the member was arrested.

(4) An officer or non-commissioned member held in custody may be deprived of all articles that might enable the member to cause physical harm or to facilitate escape, except when the member is required to carry out any duty under paragraph (2) which involves the bearing of arms.

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

105.32 – AUTHORIZED VISITORS

No person shall be admitted to the place where an officer or non-commissioned member is held in custody, without the permission of the commanding officer, unless that person is:

(a) the member's commanding officer or a member designated by that commanding officer;

(b) the Officer of the Watch or Day;

(c) the orderly officer;

(d) a chaplain;

(e) a medical officer;

(f) a person immediately responsible for the member's custody;

(g) the member's assisting officer, legal counsel or adviser; or

(h) where the member does not have legal counsel, a witness for the member.

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

105.33 – MAIL AND CORRESPONDENCE

An officer or non-commissioned member held in custody shall be permitted to send letters and telegrams and to read all correspondence addressed to the member, except that the commanding officer may direct that all letters, telegrams and other correspondence originated by or addressed to the member be scrutinized by an officer designated for that purpose by the commanding officer, and an officer so designated may withhold or return to the sender all or any part of such correspondence that he considers detrimental to:

(a) the morale of the person in custody;

(b) good order; or

(c) security.

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

105.34 – EXERCISE

An officer or non-commissioned member held in custody shall be permitted to take, under supervision, the exercise necessary to preserve the member's health.

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

105.35 – MESS PRIVILEGES

An officer or non-commissioned member held in custody shall be denied the privileges of any mess.

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

105.36 – VISITS BY MEDICAL OFFICERS

The commanding officer shall ensure, where practical, that an officer or non-commissioned member who is held in custody is visited at least once daily by a medical officer.

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

105.37 – SEGREGATION OF PRISONERS BASED ON SEX

(1) Male persons and female persons may be held in service custody in the same accommodation provided they are segregated within that accommodation.

(2) Male persons and female persons shall not be held in service custody in the exclusive charge of guards of the opposite sex, except where other arrangements are not practicable and then only for as short a time as possible.

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

105.38 – OBSERVATION OF PERSONS IN CUSTODY

(1) A non-commissioned member below the rank of warrant officer who is held in custody or an officer or non-commissioned member above the rank of sergeant who is held in custody in a place other than the member's quarters shall be observed by the person in charge of the place where the member is held at least once every hour for the first three hours after the member arrives at that place and at least once every two hours thereafter.

(2) The person in charge of the place where the member is held in custody shall immediately send for a medical officer where any signs of illness are observed.

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

105.39 – HOSPITALIZATION OF PERSONS IN CUSTODY

An officer or non-commissioned member in custody who is sent to a hospital shall, while in hospital and while being transferred to and from hospital, continue to be held in custody, unless the member is ordered to be released from custody by a person having authority to do so under this chapter.

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

105.40 – PERSONS HELD IN CUSTODY BY CIVIL AUTHORITIES

(1) Where a person subject to the Code of Service Discipline is in the charge of a civil authority, the commanding officer of any base, unit or element shall, upon request of the civil authority, immediately take that person in charge or cause that person to be taken in charge by another authority of the Canadian Forces.

(2) The authority who, pursuant to paragraph (1), takes the person in charge shall, upon taking charge, determine whether the person should be arrested in respect of a service offence.

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

NOTE

A person subject to the Code of Service Discipline may be held in service custody prior to trial only when arrested in connection with a service offence (see article 105.01 – Persons Subject to Arrest). If a civil authority requests that a person subject to the Code of Service Discipline and held in civil custody be taken over under this article, the commanding officer concerned will inform the civil authority that the person will be taken over but the Canadian Forces is not empowered to hold that person in custody except in connection with a service offence, and accordingly, that person will not, if released to the Canadian Forces, be held in custody unless subsequently placed in service custody in connection with a service offence.

(C) [1 September 1999]

[105.41 to 105.99: not allocated]