QR&O: Volume II - Chapter 112 Procedure at Courts Martial and Other Proceedings Before a Military Judge
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 – paragraph replaced : 112.03(2)
- 20 June 2022 – paragraph repealed: 112.04(1)
- 20 June 2022 – paragraph replaced: 112.05(7)
- 20 June 2022 – sub-subparagraph amended: 112.05(19)(c)(iii)
- 20 June 2022 – subparagraph amended: 112.05(22)(e)
- 20 June 2022 – article amended : 112.10
- 20 June 2022 – paragraphs repealed : 112.25(2) and 112.25(5)
- 20 June 2022 – paragraph amended : 112.25(6)
- 20 June 2022 – article replaced : 112.26
- 20 June 2022 – new article: 112.34
- 20 June 2022 – new article: 112.35
- 20 June 2022 – paragraph and note (C) amended: 112.40(1)
- 20 June 2022 – article amended: portion of 112.40(1) and portion before 2(a)
- 20 June 2022 – note (C) amended: 112.40
- 20 June 2022 – article replaced: 112.42
- 20 June 2022 – article repealed: 112.47
- 20 June 2022 – article amended: 112.48
- 20 June 2022 – articles replaced: 112.481 and 112.482
- 20 June 2022 – articles amended: 112.483,112.484 and 112.485
- 20 June 2022 – new articles: 112.486 and 112.487
- 20 June 2022 – paragraph repealed: 112.51(4)
- 20 June 2022 – paragraph amended : 112.51(11)
- 20 June 2022 – form B replaced : 112.56
- 20 June 2022 – new form: 112.582
- 20 June 2022 – subparagraph repealed: 112.81(1)(a)
- 20 June 2022 – subparagraphs replaced: 112.81(1)(e) and 112.81(2)(c)
- 1 September 2018 – heading amended: Chapter 112
- 1 September 2018 – article amended: 112.01
- 1 September 2018 – article repealed: 112.02
- 1 September 2018 – subparagraph amended: 112.05(2)(a)
- 1 September 2018 – subparagraphs amended: 112.05(2)(b), (2)(d), (3)(b), (5)(b) and (5)(c) (English version only)
- 1 September 2018 – subparagraph amended: 112.05(5)(d)
- 1 September 2018 – paragraphs amended: 112.05(6) and (7) (English version only)
- 1 September 2018 – subparagraphs amended: 112.05(8)(c), (9)(b) and (9)(d) (English version only)
- 1 September 2018 – paragraph amended: 112.05(9.1) (French version only)
- 1 September 2018 – paragraphs amended: 112.05(13) to (17) (English version only)
- 1 September 2018 – subparagraph amended: 112.05(19)(b) (English version only)
- 1 September 2018 – subparagraph amended: 112.05(19)(d)
- 1 September 2018 – sub-subparagraph amended: 112.05(19)(f)(i) (English version only)
- 1 September 2018 – paragraph amended: 112.05(20) (English version only)
- 1 September 2018 – paragraphs amended: 112.05(21) and (22)
- 1 September 2018 – paragraph repealed: 112.05(23)
- 1 September 2018 – note (B) amended: 112.05 (English version only)
- 1 September 2018 – new article: 112.051
- 1 September 2018 – subparagraph amended: 112.06(1)(a)
- 1 September 2018 – subparagraph amended: 112.06(1)(b) (English version only)
- 1 September 2018 – paragraphs amended: 112.06(2) to (4) (English version only)
- 1 September 2018 – paragraph repealed: 112.06(5)
- 1 September 2018 – heading amended: Section 3
- 1 September 2018 – article and notes repealed: 112.10
- 1 September 2018 – new article and notes: 112.10
- 1 September 2018 – article amended: 112.11
- 1 September 2018 – note repealed: 112.11
- 1 September 2018 – paragraph amended: 112.14(2) (English version only)
- 1 September 2018 – paragraph amended: 112.14(12)
- 1 September 2018 – paragraph amended: 112.14(14) (English version only)
- 1 September 2018 – paragraph repealed: 112.14(15)
- 1 September 2018 – note amended: 112.14 (English version only)
- 1 September 2018 – paragraphs amended: 112.15(1) and (2) (English version only)
- 1 September 2018 – paragraphs amended: 112.24(1), (2), (3) and (5) (English version only)
- 1 September 2018 – paragraphs repealed: 112.24(7), (9) and (10)
- 1 September 2018 – note amended: 112.24 (English version only)
- 1 September 2018 – paragraphs amended: 112.25(1) and (2) (English version only)
- 1 September 2018 – subparagraphs amended: 112.25(5)(a) and (5)(b) (English version only)
- 1 September 2018 – subparagraph amended: 112.25(5)(c)
- 1 September 2018 – paragraph amended: 112.25(6) (English version only)
- 1 September 2018 – paragraph amended: 112.26(1)
- 1 September 2018 – paragraph amended: 112.26(2) (English version only)
- 1 September 2018 – article amended: 112.29 (English version only)
- 1 September 2018 – paragraphs amended: 112.31(1), (2), (5) and (9) (English version only)
- 1 September 2018 – paragraphs amended: 112.32(2) and (3) (English version only)
- 1 September 2018 – paragraphs amended: 112.33(2) and (3) (English version only)
- 1 September 2018 – subparagraphs amended: 112.33(5)(a) and (5)(b) (English version only)
- 1 September 2018 – heading amended: Section 8
- 1 September 2018 – article and notes amended: 112.40 (English version only)
- 1 September 2018 – article repealed: 112.41
- 1 September 2018 – new articles: 112.41 to 112.414
- 1 September 2018 – paragraph amended: 112.42(2) (English version only)
- 1 September 2018 – heading amended: Section 9 (French version only)
- 1 September 2018 – article repealed: 112.47
- 1 September 2018 – new article: 112.47
- 1 September 2018 – article and notes repealed: 112.48
- 1 September 2018 – new articles: 112.48 to 112.485
- 1 September 2018 – article repealed: 112.49
- 1 September 2018 – new article: 112.49
- 1 September 2018 – paragraph amended: 112.50(1) (English version only)
- 1 September 2018 – paragraph repealed: 112.50(2)
- 1 September 2018 – paragraph (3) renumbered as (2): 112.50
- 1 September 2018 – note amended: 112.50 (English version only)
- 1 September 2018 – articles amended: 112.51 to 112.54
- 1 September 2018 – article repealed: 112.55
- 1 September 2018 – new heading: Section 9.3
- 1 September 2018 – new article: 112.581
- 1 September 2018 – subparagraph amended: 112.59(2)(a) (English version only)
- 1 September 2018 – article amended: 112.60 (English version only)
- 1 September 2018 – article repealed: 112.63
- 1 September 2018 – new article and note: 112.63
- 1 September 2018 – article amended: 112.64 (English version only)
- 1 September 2018 – paragraph amended: 112.65(1) (English version only)
- 1 September 2018 – article and note amended: 112.655 (English version only)
- 1 September 2018 – article amended: 112.66
- 1 September 2018 – new article and note: 112.671
- 1 September 2018 – new article: 112.672
- 1 September 2018 – heading amended: 112.675 (English version only)
- 1 September 2018 – paragraph amended: 112.675(1) (English version only)
- 1 September 2018 – paragraph amended: 112.675(2)
- 1 September 2018 – articles and notes repealed: 112.68 to 112.70
- 1 September 2018 – new articles: 112.68 to 112.70
- 1 September 2018 – article amended: 112.72 (English version only)
- 1 September 2018 – paragraph amended: 112.80(2) (English version only)
- 1 September 2018 – heading amended: Section 13
- 1 September 2018 – article amended: 112.81
- 1 September 2018 – new article: 112.82
- 1 June 2014 – amended article: 112.25
- 1 June 2014 – amended article: 112.40
- 1 June 2014 – amended article: 112.42
- 1 June 2014 – amended article: 112.50
- 1 June 2014 – amended article note: 112.50
- 1 June 2014 – amended article note: 112.58 (French version only)
- 1 June 2014 – amended article: 112.66
- 1 June 2014 – new article: 112.71
- 1 June 2014 – replaced article: 112.72
- 1 June 2014 – replaced article note (A): 112.72 (English version only)
- 1 June 2014 – amended article note (A): 112.72 (French version only)
- 1 June 2014 – new article: 112.73
- 18 October 2013 – replaced article: 112.16
- 18 October 2013 – replaced article: 112.21
- 14 June 2013 – replaced article: 112.50
- 14 June 2013 – added note to article 112.50
- 29 September 2011 – amended article: 112.58
- 26 March 2009 – replaced article: 112.56
- 26 March 2009 – replaced article: 112.57
- 12 September 2008 – new article: 112.58
- 18 July 2008 – amended article: 112.03
- 18 July 2008 – amended article: 112.04
- 18 July 2008 – amended article: 112.05
- 18 July 2008 – amended article: 112.07
- 18 July 2008 – amended article: 112.41
- 18 July 2008 – amended article: 112.47
- 18 July 2008 – amended article: 112.54
History:
- ARCHIVED – Historical version: 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 18 October 2013 to 31 May 2014
- ARCHIVED – Historical version for the period of 14 June 2013 to 17 October 2013
- ARCHIVED – Historical version for the period of 29 September 2011 to 13 June 2013
- ARCHIVED – Historical version for the period of 26 March 2009 to 28 September 2011
- ARCHIVED – Historical version for the period 12 September 2008 to 25 March 2009
- ARCHIVED – Historical version for the period 18 July 2008 to 11 September 2008
- ARCHIVED – Historical version for the period 5 June 2008 to 17 July 2008
(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)
Section 1 – General
112.01 – DEFINITIONS
The following definitions apply in this chapter.
“accused person” includes legal counsel acting on behalf of the accused person. (accusé)
“offender” includes legal counsel. (contrevenant)
(G) [P.C. 2018-433 effective 1 September 2018]
(G) [112.02: repealed by P.C. 2018-433 effective 1 September 2018]
112.03 – PRELIMINARY PROCEEDINGS
(1) Section 187 of the National Defence Act provides
“187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.”
(2) Section 189.1 of the National Defence Act provides:
“189.1 (1) An accused person who makes an application under subsection (2) or who, after the commencement of the trial, is called on to plead may plead guilty or not guilty, or any other plea authorized by regulations made by the Governor in Council.
(2) At any time after a court martial is convened but before the commencement of the trial, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
(3) The military judge may accept a plea of guilty only if he or she is satisfied that
(a) the accused person is making the plea voluntarily; and
(b) the accused person
(i) understands that the plea is an admission of the essential elements of the service offence,
(ii) understands the nature and consequences of the plea, and
(iii) understands that the military judge is not bound by any agreement made between the accused person and the prosecutor.
(4) The failure of the military judge to fully inquire whether the conditions set out in subsection (3) are met does not affect the validity of the plea.
(5) If an accused person refuses to plead or does not answer directly, he or she is deemed to have made a plea of not guilty.
(6) An accused person is not entitled as of right to have their trial postponed, but the military judge may, if the military judge considers that the accused person should be allowed further time to plead or prepare for their defence or for any other reason, adjourn the trial to a later time, on any terms that the military judge considers appropriate.
(7) Despite any other provision of this Act, if an accused person pleads not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence, the military judge may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the military judge shall find the accused person not guilty of the offence charged and find him or her guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court martial.
(8) If the accused person is charged with a service offence that is a serious personal injury offence and the accused person and the prosecutor have entered into an agreement under which the accused person will enter a plea of guilty of the service offence charged — or a plea of not guilty of the service offence charged but guilty of any other service offence arising out of the same transaction, whether or not it is an included offence — the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether reasonable steps were taken to inform the victims of the agreement.
(9) If the accused person is charged with a serious offence that is not a serious personal injury offence and the accused person and the prosecutor have entered into an agreement referred to in subsection (8), the military judge shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into and, if so, whether reasonable steps were taken to inform that victim of the agreement.
(10) If subsection (8) or (9) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
(11) Neither the failure of the military judge to inquire of the prosecutor as required under subsection (8) or (9) nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement affects the validity of the plea.”
(C) [18 July 2018; 20 June 2022 – 112.03 section 189.1 is replaced]
112.04 – REQUIREMENT FOR REASONABLE NOTICE – PRELIMINARY APPLICATIONS AND OBJECTIONS
(1) [Repealed]
(2) Notice pursuant to paragraph (1) shall include:
(a) sufficient detail of the nature of the application or objection and of the relief sought to enable the opposing party to respond to it without adjournment;
(b) the documentary, affidavit or other evidence to be used at the hearing of the application; and
(c) an estimate of the length of time required to present the application or objection.
(3) Where notice is not given in accordance with paragraph (1), the judge may permit an application or objection if reasonable cause for the failure to give notice is shown.
(G) [P.C. 2008-1319 effective 18 July 2008; P.C. 2022-0268 effective 20 June 2022 – 112.04 (1) is repealed]
Section 2 – Order of Procedure
112.05 – PROCEDURE TO BE FOLLOWED AT A COURT MARTIAL
(1) The procedure at a court martial shall be in the order set out in this article.
(2) At the beginning of court martial proceedings:
(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, members of the public shall be admitted;
(b) the prosecutor and the legal counsel and the adviser, if any, of the accused person, shall take their places;
(c) the military judge assigned to preside at the court martial shall open the court; and
(d) the accused person shall be brought before the court.
(3) When paragraph (2) has been complied with, the judge:
(a) shall read the convening order of the court martial; and
(b) shall ask the prosecutor and the accused person whether they object to the judge assigned to preside at the court martial and, where there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed.
(4) After any objection to the 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) After the oaths have been taken:
(a) the prosecutor shall read the charge sheet;
(b) the accused person may object to the trial being proceeded with (see article 112.24 – Pleas in Bar of Trial);
(c) the accused person may apply for further particulars on the ground that the accused person is unable to properly prepare a defence because the particulars of a charge are inadequate or are not set out with sufficient clarity and the judge, if satisfied that the further particulars are necessary to ensure a fair trial, may so order;
(d) where a charge sheet contains more than one charge, the court may, if it considers the interests of military justice require it, proceed with separate trials and direct the order in which those trials shall be held; and
(e) the judge may, on application by the prosecutor or the accused person, hear and determine any questions of law or mixed law and fact (in the case of a General Court Martial, see paragraph 112.07(1) – Questions of Law or Mixed Law and Fact – General Court Martial).
(6) The judge shall ask the accused person to plead guilty or not guilty to each charge and, where the accused person refuses to plead, a plea of not guilty shall be recorded.
(7) If the accused person pleads guilty to any charge, the military judge must ensure that the procedures described in section 189.1 of the National Defence Act and article 112.25 (Acceptance of Plea of Guilty) are followed before that plea is accepted.
(8) After all pleas have been recorded:
(a) where offences have been charged in the alternative and a plea of guilty has been accepted to any one of the alternative charges, the judge shall direct that the proceedings on the alternative charge be stayed (see article 112.80 – Effect of a Stay of Proceedings), and the trial shall proceed in accordance with subparagraph (b) or (c), as applicable;
(b) where pleas of guilty have been accepted to all charges before the court, the judge shall discharge the members of the court martial panel and determine the sentence in accordance with Section 9 (Sentence); and
(c) where the accused person has pleaded not guilty to any charge before the court, the trial in respect of the charge shall be proceeded with, before proceeding on any charge to which a plea of guilty has been accepted.
(9) In the case of a General Court Martial, the members of the court martial panel shall assemble when requested to do so by the judge and, subject to paragraph (9.1),
(a) the judge shall identify the members of the court martial panel;
(b) the judge shall ask the prosecutor and the accused person whether they object to any of the members and, where there is an objection, the procedure described in article 112.14 shall be followed;
(c) the members shall take the oath prescribed in article 112.17 (Oath to be Taken by Members of Court Martial Panel);
(d) the judge shall advise the members on the charges in respect of which the accused person has pleaded not guilty; and
(e) the judge shall address the members on such matters including the law relating to any charge before the court, that the judge considers necessary or desirable.
(9.1) Subparagraphs 112.05(9)(a) to (c) do not apply if the military judge has complied with paragraphs 119.102(2) to (4) (Plea in Bar of Trial at a General Court Martial – Fitness to Stand Trial) in respect of the members of the court martial panel.
(10) The prosecutor may make an opening address (see article 112.28 – Opening Address by Prosecutor).
(11) The prosecutor shall proceed with the case for the prosecution.
(12) The prosecutor shall inform the court when the case for the prosecution is closed.
(13) When the case for the prosecution is closed, the judge may, of the judge’s own motion or upon the motion of the accused person, hear arguments as to whether a prima facie case has been made out against the accused person, and:
(a) if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce the accused person not guilty on that charge; or
(b) if the judge decides that a prima facie case has been made out in respect of a charge, the judge shall direct that the trial proceed on that charge.
(14) The accused person may make an opening address (see article 112.29 – Opening Address by Accused Person).
(15) The accused person shall proceed with the case for the defence.
(16) If the accused person desires to testify, the accused person shall be sworn by the judge and shall testify either with or without being examined by the accused person’s legal counsel. If the accused person has been cross-examined, the accused person may be re-examined or give further evidence as if the accused person were a witness being re-examined (see article 112.31 – Examination of Witnesses).
(17) The accused person shall inform the court when the case for the defence is closed.
(18) When the case for the defence is closed, the prosecutor may, with the permission of the judge, call evidence in rebuttal.
(19) When the case for the defence has been closed or the prosecutor has called evidence, if any, in rebuttal:
(a) the prosecutor may address the court as to finding;
(b) the accused person may address the court as to finding;
(c) in the case of a General Court Martial, the judge shall
(i) instruct the members of the court martial panel on the law relating to the case,
(ii) sum up the evidence, and
(iii) instruct the members of the court martial panel as to any findings they may make, including special findings (see article 112.42 – Related or Less Serious Offence);
(d) the court shall close to determine its finding (in the case of General Courts Martial, see articles 112.41 to 112.413);
(e) the court shall reopen and, where applicable, the legality of each finding made by the members of the court martial panel shall be verified by the judge (see article 112.43 – Verification by Military Judge of Legality of Proposed Finding by Court Martial Panel); and
(f) subject to the introduction of evidence pursuant to article 119.35 (Evidence of Mental Disorder if Accused Person Does Not Raise the Issue) and the decision of the court in respect of that evidence, the judge, or in the case of a General Court martial, the senior member, shall
(i) where offences have been charged in the alternative and the accused person has been found guilty of one of the alternative charges, pronounce the finding of guilty on the charge and
(A) if, on any other alternative charge, the evidence proved the offence, direct that the proceedings be stayed on the charge (see article 112.80), or
(B) if, on any other alternative charge, the evidence does not prove the offence, pronounce a finding of not guilty on the charge, and
(ii) in respect of all other charges, pronounce the finding on each charge.
(20) Where the accused person has been found not guilty of all the charges before the court, the court shall terminate the proceedings in respect of the accused person.
(21) After the court has pronounced its finding in respect of each charge, and after any adjournment under article 112.675 (Trial of Several Accused Persons by Same Court Martial), the judge shall discharge the members of the court martial panel, determine the sentence in accordance with Section 9 and pronounce the sentence.
(22) Subject to the following provisions, the court shall terminate the proceedings in respect of the offender:
(a) article 112.051 (Application for Intermittent Sentence);
(b) article 112.06 (Termination Procedure When Sentence Includes Detention or Imprisonment);
(c) the provisions of Section 9.1 (DNA Orders);
(d) the provisions of Section 9.2 (Order to Comply with the Sex Offender Information Registration Act); and
(e)article 113.03 (Suspension of Execution of Punishment).
(23) [Repealed]
(G) [P.C. 2000-1110 effective 27 July 2000; P.C. 2008-1319 effective 18 July 2008 – (5)(e), portion before (9)(a), (9.1), portion before (19)(c)(i), (19)(d), portion before (19)(f)(i); P.C. 2018-433 effective 1 September 2018 – (2)(a), (2)(b), 2(d), 3(b), (5)(b), 5(c), (5)(d), (6), (7), (8)(c), (9)(b), (9)(d), portion before (13)(a), (13)(a), (14), (15), (16), (17), (19)(b), (19)(f)(i), (20), (21), (22) and (23); ); P.C. 2022-0268 effective 20 June 2022 – (7)]
(C) [1 September 2018 – (19)(d); 20 June 2022 – (19) (c)(iii) and (22)(e) are replaced]
NOTES
(A) The appropriate form of address for a military judge presiding at a court martial is “Your Honour”.
(B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essential ingredient such that the accused person could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neither the credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has been established. The doctrine of reasonable doubt does not apply in respect of a prima facie case determination.
(C) [1 September 1999; 1 September 2018 – Note (B)]
112.051 – APPLICATION FOR INTERMITTENT SENTENCE
If an offender is sentenced to imprisonment or detention for a period of 14 days or less and the execution of the punishment is not suspended, the court martial shall give the offender an opportunity to apply to serve the sentence intermittently and shall consider any application that is made (see article 113.46 – Power to Make Intermittent Sentence Order).
(G) [P.C. 2018-433 effective 1 September 2018]
112.06 – TERMINATION PROCEDURE WHEN SENTENCE INCLUDES DETENTION OR IMPRISONMENT
(1) Immediately after imposing a sentence that includes a punishment of detention or imprisonment, the judge presiding at a court martial shall
(a) record the date on which, and the time at which, the sentence was imposed; and
(b) ask whether the accused person has an Application for Release Pending Appeal pursuant to article 118.03 (Application to Court Martial for Hearing for Release Pending Appeal) to deliver at that time.
(2) Where the accused person delivers an Application for Release Pending Appeal, the judge shall record the time and follow the procedure contained in paragraph (4) of article 118.03 and after disposing of the application shall terminate the proceedings in accordance with article 118.05 (Action on Termination of Proceedings).
(3) Where the accused person does not deliver an Application for Release Pending Appeal immediately after sentencing, the judge shall
(a) advise the accused person that, if it is intended to make an application for release pending appeal to the court, the accused person must comply with article 118.03 within 24 hours;
(b) subject to an application pursuant to article 118.03, terminate the proceedings in respect of the accused person; and
(c) remain available until the judge has ensured that the accused person has not delivered an Application for Release Pending Appeal within 24 hours of sentencing in accordance with article 118.03.
(4) Where the accused person delivers an Application for Release Pending Appeal in accordance with article 118.03 after proceedings are terminated pursuant to subparagraph (3)(b), the judge shall, upon receipt of the application, follow the procedure contained in paragraph (4) of article 118.03.
(5) [Repealed]
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1)(a), (1)(b), (2), (3), (4) and (5)]
112.07 – QUESTIONS OF LAW OR MIXED LAW AND FACT – GENERAL COURT MARTIAL
(1) Section 191 of the National Defence Act provides
“191. The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.” (18 July 2008)
(2) Where a question of law or of mixed law and fact arises, the judge appointed to preside at a court martial shall determine whether the issue should be heard and determined in the presence or in the absence of the members of the court martial panel.
(3) The members of the court martial panel shall retire where the judge determines that the issue should not be heard in their presence.
(4) The judge shall hear the evidence and argument relating to the issue, determine the issue, announce the ruling and give the reasons therefor.
(5) The trial shall then proceed in the presence of the members of the court martial panel.
(6) Except as provided in this article, the proceedings before the judge when sitting alone shall not be communicated to the members of the court martial panel until after the court has announced its finding.
(G) [P.C. 2008-1319 effective 18 July 2008]
[112.08 and 112.09: not allocated]
Section 3 – Admission to Courts Martial and Certain Proceedings Before Military Judges
112.10 – PUBLIC PROCEEDINGS
Section 180 of the National Defence Act provides:
“180 (1) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.
(2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.
(3) In determining whether making the order is in the interest of the proper administration of military justice, the military judge shall consider
(a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;
(d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of military justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the order are available in the circumstances;
(g) the salutary and deleterious effects of the order; and
(h) any other factor that the military judge considers relevant.
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
(5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.
(6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.
(7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.”
(G) [112.10: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018; 20 June 2022 – 112.10 section 180 is replaced]
NOTES
(A) When a court martial or a military judge has made an order under subsection 180(2) of the National Defence Act, the public remains excluded unless the court martial or judge permits them to be admitted.
(B) When a court martial or a military judge decides to exclude the public, the court martial or judge may permit officers or non-commissioned members who have been detailed to attend for purposes of instruction to remain in the place where the proceedings are being held.
(C) [1 September 2018]
112.11 – GROUND FOR EXCLUDING PUBLIC
A court martial or military judge who orders the exclusion of the public under subsection 180(2) of the National Defence Act (see article 112.10 – Public Proceedings) shall specify the ground on which the order is made.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
(C) [Note to article 112.11: repealed on 1 September 2018]
[112.12 and 112.13: not allocated]
Section 4 – Objections
112.14 – OBJECTIONS TO THE CONSTITUTION OF THE COURT MARTIAL
(1) Section 186 of the National Defence Act provides:
“186. (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.
(2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.”
(2) Where the accused person or prosecutor objects to the judge or any member of the court martial panel, witnesses may be called:
(a) in support of the objection by the party making the objection;
(b) in rebuttal of the objection by the other party; and
(c) by the court if it desires to hear further evidence.
(3) After witnesses, if any, have been heard, addresses may be made to the court first by the party making the objection and then by the other party, and the party making the objection may reply to any address made by the other party.
(4) An objection to the judge shall be heard and determined by the judge in the absence of the members of the court martial panel and prior to any objection to the members.
(5) When the judge has made a decision in respect of the objection, the judge shall announce the decision in the presence of the members of the court martial panel.
(6) Where the judge allows the objection, the proceedings shall be adjourned until a replacement is appointed.
(7) Where there is an objection with respect to a member of the court martial panel,
(a) the court shall hear any evidence and argument with respect to the objection;
(b) the judge shall address the members of the court martial panel with respect to the objection; and
(c) the court shall close for the other members of the court martial panel to make a decision in respect of the objection.
(8) The member, in respect of whom an objection has been made, shall not be present during the deliberations of the court martial panel.
(9) The decision in respect of the objection shall be made by the other members of the panel, on the basis of a majority vote, with the members voting orally in succession beginning with the member lowest in rank.
(10) In the case of an equality of votes, the senior member shall have a second or casting vote in respect of an objection to any of the other members, and the next senior member shall have a second or casting vote in respect of an objection to the senior member.
(11) When the decision in respect of the objection has been made, the court shall reopen and the senior member shall announce the decision.
(12) Where an objection is allowed in respect of the senior member, the proceedings shall be adjourned until a replacement is appointed (see article 111.03 – Procedure for Appointment of Members of a Court Martial Panel).
(13) Where an objection is allowed in respect of a member of the court martial panel other than the senior member,
(a) the judge shall designate an alternate to replace the member; and
(b) if there is no alternate to replace the member, the court shall adjourn until sufficient replacements are appointed (see article 111.03).
(14) The prosecutor and the accused person may object to any replacement appointed.
(15) [Repealed]
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – portion before (2)(a), (14) and (15)]
(C) [1 September 2018 – (12)]
NOTE
Where under article 110.09 (Joint Trials) a court martial is convened to try persons jointly, each accused person has the right to object under this article and, where an objection by any of the accused person is allowed, the officer or non-commissioned member in respect of whom the objection was allowed must be replaced.
(C) [1 September 1999; 1 September 2018]
112.15 – OBJECTION TO INTERPRETER
(1) The prosecutor and the accused person may object to an interpreter on the ground of partiality or lack of competence.
(2) Where the accused person or prosecutor objects to the interpreter, witnesses may be called:
(a) in support of the objection by the party making the objection;
(b) in rebuttal of the objection by the other party; and
(c) by the court, if it desires to hear further evidence.
(3) After witnesses, if any, have been heard, addresses may be made to the court first by the party making the objection and then by the other party, and the party making the objection may reply to any address made by the other party.
(4) Upon conclusion of the addresses, the judge shall close to make a decision with respect to the objection.
(5) The court shall reopen and the judge shall announce the decision.
(6) Where an objection to an interpreter is allowed, the court may appoint another interpreter.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1) and portion before (2)(a)]
Section 5 – Oaths
112.16 – OATH TO BE TAKEN BY JUDGE PRESIDING AT COURT MARTIAL
The oath to be taken by the judge presiding at a court martial shall be in the following form:
“I .......... solemnly and sincerely promise and swear that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. So help me God.”
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2013-1068 effective 18 October 2013]
NOTE
For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).
(C) [1 September 1999]
112.17 – OATH TO BE TAKEN BY MEMBERS OF COURT MARTIAL PANEL
The oath to be taken by the members of a court martial panel shall be in the following form:
“I swear that I will duly carry out the duties of a member of the court martial panel according to law, without partiality, favour or affection and make true findings according to the evidence; and I do further swear that I will not, at any time whatsoever, disclose the vote or opinion of any particular member of this court martial panel, unless thereunto required in due course of law. So help me God.”
(G) [P.C. 1999-1305 effective 1 September 1999]
NOTE
For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).
(C) [1 September 1999]
112.18 – OATH TO BE TAKEN BY COURT REPORTER
The oath to be taken by a court reporter shall be in the following form:
“I swear that I will, to the best of my ability, truly record the evidence to be given before this court martial and such other matters as may be required, and will deliver to the court a true transcript of the same. So help me God.”
(G) [P.C. 1999-1305 effective 1 September 1999]
NOTE
For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).
(C) [1 September 1999]
112.19 – OATH TO BE TAKEN BY INTERPRETER
The oath to be taken by an interpreter shall be in the following form:
“I swear that I will, to the best of my ability truly interpret and translate as I shall be required to do. So help me God.”
(G) [P.C. 1999-1305 effective 1 September 1999]
NOTE
For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).
(C) [1 September 1999]
112.20 – OATH TO BE TAKEN BY WITNESSES
The oath to be taken by a witness shall be administered by the judge and shall be in the following form:
“I swear that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. So help me God.”
(G) [P.C. 1999-1305 effective 1 September 1999]
NOTE
For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).
(C) [1 September 1999]
112.21 – AFFIRMATION IN LIEU OF OATH
(1) Section 251.1 of the National Defence Act provides:
“251.1 (1) A person who is required to take an oath under this Act may, instead of taking an oath, make a solemn affirmation.
(2) A solemn affirmation has the same force and effect as an oath.
(3) An oath or a solemn affirmation under this Act has, in respect of any prosecution under the Criminal Code, the same force and effect as an oath taken before a civil court.”
(2) The form of a solemn affirmation shall be as prescribed for the appropriate oath and adapted as follows:
(a) in the case of an oath taken in accordance with article 112.16, the words “and affirm” are to be substituted for the words “and swear” and the words “So help me God” are to be omitted; and
(b) in all other cases, the words “I solemnly affirm” are to be substituted for the words “I swear” and the words “So help me God” are to be omitted.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2013-1068 effective 18 October 2013 – (2)]
[112.22 and 112.23: not allocated]
Section 6 – Pleas
112.24 – PLEAS IN BAR OF TRIAL
(1) An accused person may plead in bar of trial that:
(a) the court has no jurisdiction;
(b) the charge before the court or a substantially similar charge arising out of the facts that gave rise to the charge before the court was dismissed;
(c) the accused person was previously found guilty or not guilty of the charge before the court or a substantially similar charge arising out of the facts that gave rise to the charge before the court;
(d) the accused person is unfit to stand trial on account of mental disorder (see Chapter 119 – Mental Disorder); or
(e) the charge does not disclose a service offence.
(2) The accused person may make any statement that is pertinent to the plea in bar of trial and witnesses may be called (see article 112.31 – Examination of Witnesses):
(a) by the accused person, to support the plea;
(b) by the prosecutor, in rebuttal of the plea; and
(c) by the court, if it desires to hear any further evidence.
(3) After witnesses, if any, have been heard, addresses may be made to the court first by the accused person and then by the prosecutor, and the accused person has the right to make an address in reply to any address made by the prosecutor.
(4) Upon conclusion of the addresses, the court shall close to deal with the plea in bar of trial.
(5) Where a decision in respect of the plea has been made, the court shall reopen and inform the accused person of the decision.
(6) Where a plea in bar of trial has been allowed to all charges, the court shall terminate the proceedings.
(7) [Repealed]
(8) Where a plea in bar of trial has been allowed but not to all charges, the court shall:
(a) terminate the proceedings in respect of any charge to which a plea has been allowed; and
(b) proceed with the trial of any charge to which a plea has not been allowed.
(9) [Repealed]
(10) [Repealed]
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – portion before (1)(a), (1)(c), (1)(d), portion before (2)(a), (2)(a), (3), (5), (7), (9) and (10)]
NOTE
The power of commanding officers and superior commanders to dismiss a charge was removed from the National Defence Act by amendments in An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35, effective September 1, 1999. A dismissal of a charge before that date may still be pleaded in bar of trial by an accused person.
(C) [1 September 1999; 1 September 2018]
112.25 – ACCEPTANCE OF PLEA OF GUILTY
(1) Where the accused person pleads guilty to a charge, the judge shall:
(a) explain the offence to which the accused person has pleaded guilty and inform the accused person of the maximum punishment that the court can impose;
(b) ask the accused person whether the statement of particulars in respect of the offence to which the accused person has pleaded guilty is accurate; and
(c) explain the difference in the procedure to be followed if the plea is accepted.
(2) [Repealed]
(3) Where the prosecutor concurs in the acceptance of a plea of guilty, the court may accept the plea of guilty and record it accordingly.
(4) Where there are alternative charges, a plea of guilty shall not be accepted to more than one of those charges.
(5) [Repealed]
(6) If the prosecutor does not concur in the acceptance of a plea of guilty, the military judge must direct that the trial proceed as if the accused person had initially pleaded not guilty.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – portion before (1)(a), (1)(a), (1)(b), portion before (2)(a), (2)(a), (2)(d), (5)(a), (5)(b), (5)(c) and (6); P.C. 2022-0268 effective 20 June 2022 – (2) and (5) are repealed and (6) is replaced]
(C) [1 June 2014 – (2)(b) and (2)(c)]
112.26 – CHANGE OF PLEA DURING TRIAL
(1) Where the court has accepted a plea of guilty under subsection 189.1(3) of the National Defence Act, it shall, at any time during the trial and if it considers the interests of military justice so require, direct that a plea of guilty be altered to a plea of not guilty and proceed as if a plea of not guilty had originally been entered.
(2) At any time during trial before the court has closed to determine its finding, the accused person may, with the permission of the court, change a plea of not guilty to a plea of guilty.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1) and (2); P.C. 2022-0268 effective 20 June 2022 – 112.26 is replaced]
[112.27: not allocated]
Section 7 – Opening Addresses and Evidence of Witnesses
112.28 – OPENING ADDRESS BY PROSECUTOR
The opening address by the prosecutor:
(a) shall not contain any assertion that the prosecutor does not intend to substantiate by evidence;
(b) should not be unnecessarily detailed; and
(c) should contain a brief statement of the substance of the charge, the circumstances in which it is alleged the offence was committed and the nature and general effect of the evidence that the prosecutor proposes to call in support of the charge.
(G) [P.C. 1999-1305 effective 1 September 1999]
112.29 – OPENING ADDRESS BY ACCUSED PERSON
The opening address by the accused person:
(a) shall not contain any assertion that the accused person does not intend to substantiate by evidence;
(b) should not be unnecessarily detailed; and
(c) should contain a brief statement of the nature and general effect of the evidence that the accused person proposes to call for the defence.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – heading, portion before (a), (a) and (c)]
[112.30: not allocated]
112.31 – EXAMINATION OF WITNESSES
(1) The prosecutor and the accused person may call witnesses.
(2) The prosecutor and the accused person may cross-examine or apply to postpone the cross-examination of each witness for the opposing party.
(3) If a witness has been cross-examined, the party calling the witness may re-examine that witness.
(4) The judge and, with the permission of the judge, any member of the court martial panel may put further questions to a witness, during or at the conclusion of the examination of the witness.
(5) If a witness has been questioned by the judge or a member of the court martial panel, the prosecutor and the accused person may, with the permission of the judge, ask the witness any question, relative to the answers, that the judge considers proper.
(6) Subject to paragraph (7), a witness shall answer each question that the witness is asked.
(7) Where there is an objection to a question or the witness claims privilege, the witness:
(a) shall not answer the question until the decision of the judge as to the objection or claim has been announced; and
(b) after the announcement of the decision by the judge, shall answer the question unless the objection or the claim has been allowed.
(8) The court may direct the witness to withdraw while it resolves any issue concerning the witness's evidence.
(9) Where a question to a witness is disallowed, the prosecutor and the accused person shall refrain from further examination or comment on the matter.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1), (2), (5) and (9)]
NOTES
(A) For other rules relating to the examination of witnesses, see the Military Rules of Evidence (QR&O Volume IV, Appendix 1.3).
(B) Failure to answer questions when required to do so is an offence under sections 118 and 302 of the National Defence Act. A witness who fails to answer a question may be punished for contempt by the court under section 179 of the National Defence Act.
(C) Any person giving evidence before a court martial may be heard in the official language of the person's choice. The right of a person to be heard in the official language of the person's choice should not be confused with the right of a witness to an interpreter at a court martial, under section 14 of the Canadian Charter of Rights and Freedoms, where that witness does not understand or speak the language in which the proceedings are conducted or is deaf.
(C) [1 September 1999]
112.32 – POWER OF COURT MARTIAL TO CALL AND RECALL WITNESSES
(1) The court martial may, at any time during the presentation of the case for the prosecution and the case for the defence, or at any other time before a finding is made:
(a) recall and question any witness; and
(b) call and question any further witnesses.
(2) Where a witness has been called or recalled, the prosecutor and the accused person may, with the permission of the judge, ask the witness any questions, relative to the answers, that the judge considers proper.
(3) Where a witness has been called or recalled after any closing address, the prosecutor and the accused person shall be given the opportunity to make a further closing address in respect of the evidence adduced.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (2) and (3)]
112.33 – WITNESS TESTIMONY OUTSIDE COURT ROOM – SPECIAL CASES
(1) In this article, “complainant” means the victim of an alleged offence.
(2) This article applies where an accused person is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 of the Criminal Code, punishable under section 130 of the National Defence Act, and the complainant or any witness at the time of the trial is under the age of 18 years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability.
(3) Where the judge is of the opinion that the exclusion of the complainant or witness from the presence of the accused person or from the court room is necessary to obtain a full and candid account of the acts complained of from the complainant or witness, the judge may order that the complainant or witness testify:
(a) outside the court room, but in the presence of the prosecutor and legal counsel for the accused person; or
(b) behind a screen or other device that would allow the complainant not to see the accused person.
(4) Where the judge is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under paragraph (3) should be made in respect of that complainant or witness, the judge shall order that the complainant or witness testify pursuant to that paragraph.
(5) A complainant or witness shall not testify outside the court room pursuant to subparagraph (3)(a) unless:
(a) arrangements are made for the accused person and the court to visually and orally follow the testimony of the complainant or witness and for the prosecutor and legal counsel for the accused person to engage in simultaneous visual and oral communication with the court; and
(b) the accused person is permitted to communicate with legal counsel while following the testimony.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (2), (3), (5)(a) and (5)(b)]
112.34 – ORDER RESTRICTING PUBLICATION – VICTIMS AND WITNESSES
Section 183.6 of the National Defence Act provides:
“183.6 (1) Unless an order is made under section 183.5, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim or witness not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
(2) On application of the prosecutor in respect of a military justice system participant who is involved in proceedings in respect of an offence referred to in subsection (3) or on application of the military justice system participant themself, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the military justice system participant not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.
(3) For the purpose of subsection (2), an offence is any of the following:
(a) an offence punishable under section 130 that is an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13 of the Criminal Code or that is a serious offence committed for the benefit of, at the direction of, or in association with a criminal organization;
(b) a terrorism offence;
(c) an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act;
(d) an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Security of Information Act and that is committed in relation to an offence referred to in paragraph (c).
(4) An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.
(5) An application for an order under this section must be made in accordance with regulations made by the Governor in Council.
(6) The application must set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of military justice.
(7) The military judge may hold a hearing to determine whether an order under this section should be made, and the hearing may be held in private.
(8) In determining whether to make an order under this section, the military judge shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or military justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or military justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;
(e) whether effective alternatives are available to protect the identity of the victim, witness or military justice system participant;
(f) the salutary and deleterious effects of the order;
(g) the impact of the order on the freedom of expression of those affected by it; and
(h) any other factor that the military judge considers relevant.
(9) An order made under this section may be subject to any conditions that the military judge thinks fit.
(10) Unless the military judge refuses to make an order under this section, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of the application for the order;
(b) any evidence taken, information given or submissions made at a hearing held under subsection (7); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or military justice system participant in the proceedings.”
(C) [20 June 2022]
112.35 – APPLICATION FOR AN ORDER
For the purposes of subsection 183.6(5) of the National Defence Act, the application may be made orally or in writing at any stage of the proceedings against the accused person.
(G) [P.C. 2022-0268 effective 20 June 2022]
[112.36 to 112.39: not allocated]
Section 8 – Findings and Other Court Martial Decisions
112.40 – DIRECTIONS RESPECTING FINDINGS
(1) Subject to paragraph (2), article 112.42 (Related or Less Serious Offence), article 119.11 (Where Accused is Found Fit to Stand Trial), article 119.12 (Where Accused is Found Unfit to Stand Trial) and article 119.37 (Finding of Not Responsible on Account of Mental Disorder), the court shall find the accused person not guilty on each charge, unless it concludes that the evidence proves beyond reasonable doubt that the accused person:
(a) committed the offence charged;
(b) attempted to commit the offence charged (see article 103.63 – Attempt to Commit Offence); or
(c) committed a related or less serious offence prescribed in sections 133 to 136 of the National Defence Act (see article 103.62 – Related or Less Serious Offences).
(2) Where offences have been charged in the alternative and the court finds the accused person guilty of one of the alternative charges, the court shall:
(a) if, on any other alternative charge, the evidence proved the offence, direct that the proceedings be stayed on the charge (see article 112.80 – Effect of a Stay of Proceedings); or
(b) if, on any other alternative charge, the evidence does not prove the offence, pronounce a finding of not guilty on the charge.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1) and portion before (2)(a)]
(C) [20 June 2022 – (1)]
NOTES
(A) Where there are four offences charged and no charges are in the alternative, a finding might, for example, be in one of the following forms:
“The court finds the accused person not guilty on the first charge and guilty on the second to fourth charges inclusive.”
“The court finds the accused person not guilty on all charges.”
“The court finds the accused person guilty on all charges.”
“The court finds the accused person guilty on the first and third charges and not guilty on the second and fourth charges.”
(B) The following example shows the possible findings on alternative charges. The charges may be assumed to have been:
First charge (Alternative to Second Charge) – A charge under section 95 of the National Defence Act of ill-treating a subordinate.
Second charge (Alternative to First Charge) – A charge under section 129 of the National Defence Act of conduct to the prejudice of good order and discipline.
The finding on these charges might be in any one of the following forms:
“The court finds the accused person not guilty on both charges.”
“The court finds the accused person guilty on the first charge and directs that the proceedings on the second charge be stayed.”
“The court finds the accused person guilty on the first charge and finds the accused person not guilty on the second charge.”
“The court finds the accused person not guilty on the first charge and finds the accused person guilty on the second charge.”
(C) If the accused person were charged with an offence under section 114 of the National Defence Act of stealing $500 and the court concluded that the accused person had stolen only $250, the form of special finding (see article 112.42 – Related or Less Serious Offence) applicable would be:
“The court finds the accused person guilty of the charge with the special finding that he stole $250 and not $500.”
(D) An example of the finding of guilty on a related or less serious offence is as follows:
The accused person is charged first under section 88 of the National Defence Act with desertion and secondly under Section 85 of that Act with using threatening language towards a superior officer.
The finding of the court might be:
“The court finds the accused person guilty of the less serious offence of absence without leave on the first charge and guilty of the related offence of behaving with contempt toward a superior officer on the second charge.”
(E) Where the accused person is found guilty of attempting to commit the offence charged, the form of the finding in a theft case would be:
“The court finds the accused person guilty of attempting to steal.”
(F) Where the issue of whether the accused person is unfit to stand trial is tried and determined (see section 2 (Fitness to Stand Trial) of Chapter 119 – Mental Disorder), the form of finding might be in one of the following forms:
“The court finds that the accused person is fit to stand trial.”
“The court finds that the accused person is unfit to stand trial.”
(G) Where evidence is given that the accused person was suffering from a mental disorder at the time the offence is alleged to have been committed (see section 5 (Mental Disorder When Offence Committed) of Chapter 119 – Mental Disorder), the form of finding might be in one of the following forms:
“The court finds that the accused person committed the act (or made the omission) that formed the basis of the offence charged but was at the time of the offence suffering from a mental disorder so as to be exempt from responsibility.”
“The court finds that the accused person was suffering from a mental disorder at the time the offence was committed but nonetheless finds him not guilty otherwise than by reasons of mental disorder.”
“The court finds the accused person guilty of the charge.”
“The court finds that the accused person was not suffering from a mental disorder at the time the alleged offence was committed and finds him not guilty of the charge.”
(C) [1 September 1999; 20 June 2022 – (C)]
112.41 – DECISIONS OF COURT MARTIAL PANEL
Subsection 192(1) of the National Defence Act provides:
“192. (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.”
(G) [112.41: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
112.411 – REQUESTS BY A MEMBER OF COURT MARTIAL PANEL
At any time during deliberations to determine the finding of a court martial, a member of the court martial panel may, through the senior member of the panel, ask to receive further instructions from the presiding military judge on the applicable law or to hear any portion of the audio recording of the evidence.
(G) [P.C. 2018-433 effective 1 September 2018]
112.412 – VOTING BY MEMBERS OF COURT MARTIAL PANEL
Subsection 192(2) of the National Defence Act provides:
“192. (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.”
(C) [1 Septemer 2018]
112.413 – MANNER OF VOTING BY MEMBERS OF COURT MARTIAL PANEL
The members of a court martial panel shall vote orally in succession, beginning with the member lowest in rank.
(G) [P.C. 2018-433 effective 1 September 2018]
112.414 – DISAGREEMENT OF MEMBERS OF COURT MARTIAL PANEL
Section 192.1 of the National Defence Act provides:
“192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.
(2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.”
(C) [1 September 2018]
112.42 – RELATED OR LESS SERIOUS OFFENCE OR ATTEMPT FINDINGS
If an accused person is found guilty of an attempt to commit the offence charged (see article 103.63 – Attempt to Commit Offence), or of a related or less serious offence (see article 103.62 – Related or Less Serious Offences), the finding must include a statement of the offence of which the accused person has been found guilty (see paragraph 103.64(1)).
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (2); P.C. 2022-0268 effective 20 June 2022 – 112.42 is replaced]
NOTE
For the form of findings under this article see the notes to article 112.40 (Directions Respecting Findings).
(C) [1 September 1999]
112.43 – VERIFICATION BY MILITARY JUDGE OF LEGALITY OF PROPOSED FINDING BY COURT MARTIAL PANEL
(1) The court martial panel shall, in open court immediately prior to pronouncing a finding, inform the judge of the proposed finding.
(2) The judge shall review the finding and inform the court martial panel whether or not it is legal.
(3) The court martial panel shall not pronounce the proposed finding unless the judge informs the court martial panel that it is legal.
(4) Where the judge informs the members of the court martial panel that the proposed finding is illegal, the judge shall provide any further instructions that the judge considers appropriate and the members shall close to reconsider the finding.
(5) When the members of the court martial panel have reconsidered the finding, the court shall reopen and proceedings shall continue in accordance with paragraphs (1) to (4) until the judge informs the court martial panel that the proposed finding is legal.
(G) [P.C. 1999-1305 effective 1 September 1999]
[112.44 to 112.46: not allocated]
(C) [112.47: repealed on 1 September 2018]
(G) [P.C. 2018-433 effective 1 September 2018; P.C. 2022-0268 effective 20 June 2022 – 112.47 is repealed]
112.48 – VICTIM IMPACT STATEMENT
Subsections 203.6(1) and (2) of the National Defence Act provide:
“203.6 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged absolutely in respect of any offence, a court martial shall consider the statement of any victim of the offence describing the physical or emotional harm done to, or property damage or economic loss suffered by, the victim as a result of the commission of the offence and the impact of the offence on the victim.
(2) The victim’s statement must be filed in accordance with regulations made by the Governor in Council.”
(G) [112.48: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018; 20 June 2022 – (1) and (2) are replaced]
(C) [Notes to article 112.48: repealed on 1 September 2018]
112.481 – FILING A VICTIM IMPACT STATEMENT
For the purposes of subsection 203.6(2) of the National Defence Act, the prosecutor must file with the court martial, in writing, any victim impact statement.
(G) [P.C. 2018-433 effective 1 September 2018; P.C. 2022-0268 effective 20 June 2022 – 112.481 and 112.482 are replaced by 112.481]
112.483 – PRESENTATION OF STATEMENT BY VICTIM
Subsection 203.6(3) of the National Defence Act provides:
“203.6 (3) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to present the statement by
(a) reading it;
(b) reading it in the presence and close proximity of any support person of the victim’s choice;
(c) subject to subsection 203.7(4), reading it outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or
(d) presenting it in any other manner that the court martial considers appropriate.”
(C) [1 September 2018; 20 June 2022 – Subsection 203.6(3) is replaced]
112.484 – OTHER EVIDENCE CONCERNING VICTIM
Subsection 203.6(4) of the National Defence Act provides:
“203.6 (4) Whether or not a statement has been prepared and filed in accordance with this section, the court martial may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or determining whether the offender should be discharged absolutely.”
(C) [1 September 2018; 20 June 2022 – Subsection 203.6(4) is replaced]
“203.7 (1) As soon as circumstances permit after a finding of guilt and in any event before imposing sentence, the court martial shall inquire of the prosecutor whether reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 203.6(1).
(2) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the proceedings to permit a victim to prepare a statement or to present evidence in accordance with subsection 203.6(4), if the court martial is satisfied that the adjournment would not interfere with the proper administration of military justice.
(3) During the presentation
(a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings; or
(b) if the statement is presented by an individual acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court martial, disrupt the proceedings.
(4) The victim shall not present the statement outside the courtroom unless arrangements are made for the offender and the court martial to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
(5) In considering the statement, the court martial shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection 203.6(1) and disregard any other portion.”
(C) [1 September 2018; 20 June 2022 – Section 203.7 is replaced]
112.486 – MILITARY IMPACT STATEMENT
(1) For the purposes of subsection 203.71(2) of the National Defence Act, the offender’s commanding officer is authorized to prepare the military impact statement.
(2) The commanding officer may appoint any officer or non-commissioned member above the rank of warrant officer who is under their command to prepare the statement if the commanding officer is unable to do so because the commanding officer
(a) is a victim of the offence of which the offender has been found guilty;
(b) does not have sufficient knowledge of the offence to be able to describe the harm done to, and the impact of the offence on, discipline, efficiency, and morale;
(c) is unable to impartially assess the harm done to, and the impact of the offence on, discipline, efficiency, and morale; or
(d) has insufficient time available, due to operational reasons or other exigencies of the service, to prepare the statement.
(3) However, the commanding officer may only appoint an officer or non-commissioned member who
(a) is not a victim of the offence of which the offender has been found guilty;
(b) is able to impartially assess the harm done to, and the impact of the offence on, discipline, efficiency, and morale;
(c) has sufficient time available to prepare the statement; and
(d) has responsibility for the maintenance of discipline, efficiency, and morale.
(4) The prosecutor must file with the court martial, in writing, the military impact statement.
(G) [P.C. 2022-0268 effective 20 June 2022]
112.487 – FILING A COMMUNITY IMPACT STATEMENT
For the purposes of subsection 203.72(2) of the National Defence Act, the prosecutor must file, in writing, any community impact statement.
(G) [P.C. 2022-0268 effective 20 June 2022]
112.49 – SIMILAR OFFENCES
Section 194 of the National Defence Act provides:
“194. (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.
(2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.”
(G) [112.49: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
112.50 – RECOMMENDATION BY COURT MARTIAL PANEL – PAROLE ELIGIBILITY – MURDER
(1) If a court martial panel finds an accused person guilty of murder and the military judge asks the members of the panel if they wish to make a recommendation with respect to the parole eligibility of the accused person in accordance with section 745.2, 745.21 or 745.3 of the Criminal Code as made applicable by subsection 226.1(2) of the National Defence Act, the court is to close to allow the members to decide whether or not they wish to make such a recommendation and, if in the affirmative, the substance of the recommendation.
(2) The decision as to whether or not to make a recommendation as well as the decision as to its substance, if applicable, shall be made by the members of the court martial panel on the basis of a majority vote, with the members voting orally in succession beginning with the member lowest in rank.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2013-0613 effective 14 June 2013; P.C. 2014-0575 effective 1 June 2014 – (1); P.C. 2018-433 effective 1 September 2018 – (1), (2) and (3)]
NOTE
Subsection 745.51(1) of the Criminal Code, as made applicable by subsection 226.1(2) of the National Defence Act, provides that, if a court martial panel finds an accused person guilty of murder and that accused person has previously been convicted of one or more other murders, the military judge may order that the periods without eligibility for parole be served consecutively for each murder conviction.
(C) [14 June 2013; 1 June 2014; 1 September 2018]
112.51 – SENTENCING PROCEDURE
(1) This article sets out the procedure to be followed to determine the sentence to be imposed on an offender or to decide if the offender should be discharged absolutely.
(2) The prosecutor shall provide the court martial with the documents referred to in article 111.17 (Documents Provided to the Prosecutor).
(3) The prosecutor shall inform the court martial of the circumstances of any charge to which a plea of guilty has been accepted.
(4) [Repealed]
(5) The prosecutor, followed by the offender, may introduce any relevant evidence, including witness testimony, to assist the court martial in making a determination or decision referred to in paragraph (1).
(6) The prosecutor may, with the permission of the court martial, introduce any relevant evidence, including witness testimony, in rebuttal of any evidence introduced by the offender.
(7) Article 112.31 (Examination of Witnesses) applies to witness testimony referred to in paragraphs (5) and (6) and, for that purpose, a reference to the “accused person” in article 112.31 shall be read as a reference to the “offender”, but any reference to a member of the court martial panel shall be excluded.
(8) The court martial may, on its own motion, after hearing argument from the prosecutor and the offender,
(a) compel the production of any relevant evidence; and
(b) recall any witness, call further witnesses and ask questions of any witness.
(9) If a witness has been questioned under subparagraph (8)(b), the prosecutor and the offender may, with the permission of the court martial, ask the witness any question relative to the answers as the court martial considers proper.
(10) The prosecutor, followed by the offender, may address the court martial to assist the court martial in making a determination or decision referred to in paragraph (1).
(11) Unless the offender is discharged absolutely (see article 104.15 – Absolute Discharge), the military judge presiding at the court martial determines the sentence in accordance with this section and sections 203.1 to 203.4 and 203.95 of the National Defence Act (see articles 104.14 – Purposes and Principles of Sentencing by Courts Martial and 104.16 – One Sentence Only).
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018; P.C. 2022-0268 effective 20 June 2022 – (4) is repealed]
(C) [20 June 2022 – Paragraph 112.51 (11) is amended]
112.52 – TESTIMONY AT SENTENCING – SPECIAL CASES
(1) This article applies if the following conditions are met:
(a) the offender has been found guilty of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 210, 211, 213, 266, 267, 268, 271, 272 or 273 of the Criminal Code, punishable under section 130 of the National Defence Act; and
(b) the witness is under the age of 18 years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability.
(2) The court martial may, if it is of the opinion that it is necessary to do so to obtain full and candid testimony from the witness, order that they testify
(a) outside the court room, but in the presence of the prosecutor and legal counsel for the offender; or
(b) behind a screen or other device that would allow the witness not to see the offender.
(3) If the court martial is of the opinion that it is necessary for the witness to testify in order to determine whether an order under paragraph (2) should be made, the court martial shall order that the witness testify in accordance with that paragraph.
(4) A witness shall not testify outside the court room under subparagraph (2)(a), unless
(a) arrangements are made for the offender and the court martial to see and hear the testimony of the witness and for the prosecutor and legal counsel for the offender to engage in simultaneous visual and oral communication with the court martial; and
(b) the offender is permitted to communicate with legal counsel while following the testimony.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
112.53 – DISPUTED FACTS
Subsection 203.5(1) of the National Defence Act provides:
“203.5 (1) If there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court martial shall request that evidence be adduced as to the existence of the fact unless it is satisfied that sufficient evidence was adduced at trial;
(b) subject to paragraph (c), the court martial shall be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(c) the prosecutor shall establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction of the accused person.”
(G) [112.53: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
112.54 – PROVEN FACTS – GENERAL COURT MARTIAL
Subsection 203.5(2) of the National Defence Act provides:
“203.5(2) In the case of a General Court Martial, the court martial
(a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.”
(G) [112.54: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
(G) [112.55: repealed by P.C. 2018-433 effective 1 September 2018]
112.56 – DNA ORDER
A DNA order for the purpose of section 196.14 of the National Defence Act shall be in Form A, B or C as applicable:
FORM A
ORDER AUTHORIZING THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
To the peace officers of (base, unit or territorial division):
Whereas (service number and rank (if applicable) and name of offender) has been found guilty under the National Defence Act of (offence), which, on the day on which the offender was sentenced, was a primary designated offence, within the meaning of section 196.11 of that Act;
Therefore, you are authorized to take or cause to be taken from (service number and rank (if applicable) and name of offender) the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated on (day / month / year) at (place of issuance).
(signature of presiding military judge)
(rank and name of presiding military judge)
(General or Standing) Court Martial
FORM B – ORDER AUTHORIZING THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
(Section 196.12 of the National Defence Act)
To the peace officers of (base, unit or territorial division):
Whereas (service number and rank (if applicable) and name of person), in this order called the “person”,
(a) has been found not responsible on account of mental disorder for (offence), which, on the day on which the finding was made, was a primary designated offence within the meaning of section 196.11 of the National Defence Act, or
(b) has been found guilty under the National Defence Act or found not responsible on account of mental disorder for (offence), which, on the day on which the person was sentenced or the finding was made, was a secondary designated offence within the meaning of section 196.11 of the National Defence Act;
Whereas I have considered the nature of the offence and the circumstances surrounding its commission, any previous convictions by a court martial or a civil court, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that this order would have on the person’s privacy and security;
And whereas I am satisfied that it is in the best interests of the administration of military justice to make this order;
Therefore, you are authorized to take or cause to be taken from (service number and rank (if applicable) and name of person) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated ………………… (day/month/year) ………….., at …………(place of issuance).
(Signature of presiding military judge)
(rank and name of presiding military judge)
(General or Standing) Court Martial
FORM C
ORDER TO A PERSON TO HAVE SAMPLES OF BODILY SUBSTANCES TAKEN FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
To (service number and rank (if applicable) and name of offender):
Whereas an order has been made under section 196.14 of the National Defence Act to take from you the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;
This is therefore to command you, in Her Majesty's name, to report on (day / month / year), at (hours), at (place), for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 196.2(1) of the National Defence Act. A peace officer, or a person who is acting under a peace officer's direction, who takes the samples of bodily substances may use as much force as necessary to do so.
You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 196.161(1) of the National Defence Act. You are also warned that failure to comply with this order, without reasonable excuse, is an offence under subsection 119.2(1) of that Act.
Subsection 119.2(1) of the National Defence Act provides as follows:
“119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.”
Subsection 196.161(1) of the National Defence Act provides as follows:
“196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.”
Dated on (day / month / year) at (place of issuance).
(signature of presiding military judge)
(rank and name of presiding military judge)
(General or Standing) Court Martial
(G) [P.C. 2000-1110 effective 27 July 2000 – Forms A and B; P.C. 2009-0430 effective 26 March 2009; P.C. 2022-0268 effective 20 June 2022 – Form B is replaced]
NOTE
The form of the written report that a peace officer makes after taking samples of bodily substances or directing the taking of them, in the execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or an authorization under section 196.24 of the National Defence Act, is prescribed in article 106.12 (Report by Peace Officer).
(C) [26 March 2009]
112.57 – AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES
(1) An ex parte application for the purpose of subsection 196.24(1) of the National Defence Act shall be in the following form:
APPLICATION FOR AN AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
I, (rank and name), a peace officer of (base, unit or territorial division), apply for an authorization to take additional samples of bodily substances for the purpose of forensic DNA analysis.
Whereas samples of bodily substances were taken from (service number and rank (if applicable) and name of offender) for the purpose of forensic DNA analysis under an order made under section 196.14 of the National Defence Act (attach a copy of the order);
And whereas on (day/month/year) it was determined that:
(a) a DNA profile could not be derived from the samples for the following reasons:
(b) the bodily substances and information required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons:
Therefore, I request that an authorization be granted under subsection 196.24(1) of the National Defence Act to the peace officers of (base, unit or territorial division) to take from (service number and rank (if applicable) and name of offender) the number of additional samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of that Act, and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
Dated on (day / month / year) at (location).
(signature of applicant)
(rank and name of applicant)
(2) An authorization for the purpose of subsection 196.24(1) of the National Defence Act shall be in the following form:
AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
To the peace officers of (base, unit or territorial division):
Whereas samples of bodily substances were taken from (service number and rank (if applicable) and name of offender) for the purpose of forensic DNA analysis under an order made under section 196.14 or 196.15 of the National Defence Act;
Whereas on (day / month / year) it was determined that:
(a) a DNA profile could not be derived from the samples for the following reasons:
(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons:
And whereas (rank and name), a peace officer of (base, unit or territorial division), has applied for an authorization to take the number of additional samples of bodily substances from (service number and rank (if applicable) and name of offender) that is reasonably required for the purpose of forensic DNA analysis by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act;
Therefore, you are authorized to take those additional samples, or cause them to be taken, from (service number and rank (if applicable) and name of offender), provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated on (day / month / year) at (location).
(signature of military judge)
(rank and name of military judge)
(3) An order for the purpose of subsection 196.24(4) of the National Defence Act shall be in the following form:
ORDER TO A PERSON TO HAVE ADDITIONAL SAMPLES OF BODILY SUBSTANCES TAKEN FOR THE PURPOSE OF FORENSIC DNA ANALYSIS
To: (service number and rank (if applicable) and name of offender)
Whereas an authorization has been granted under subsection 196.24(1) of the National Defence Act to take from you the number of additional samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;
This is therefore to command you, in Her Majesty's name, to appear on (day / month / year), at (hours), at (place), for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 196.2(1) of the National Defence Act. A peace officer, or a person who is acting under a peace officer's direction, who takes the samples of bodily substances may use as much force as necessary to do so.
You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 196.161(1) of the National Defence Act. You are also warned that failure to comply, without reasonable excuse, is an offence under subsection 119.2(1) of that Act.
Subsection 119.2(1) of the National Defence Act provides as follows:
“119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.”
Subsection 196.161(1) of the National Defence Act provides as follows:
“196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples to be taken.”
Dated on (day / month / year) at (place of issuance).
(signature of military judge)
(rank and name of military judge)
(G) [P.C. 2000-1110 effective 27 July 2000 – (1) and (2); P.C. 2009-0430 effective 26 March 2009]
NOTE
The form of the written report that a peace officer makes after taking samples of bodily substances or directing the taking of them, in the execution of an authorization under section 196.24 of the National Defence Act, is prescribed in article 106.12 (Report by Peace Officer).
(C) [27 July 2000]
112.58 – ORDER TO COMPLY WITH THE SEX OFFENDER INFORMATION REGISTRATION ACT
An order for the purpose of subsection 227.01(1), (2) or (3) of the National Defence Act shall be in the following form:
ORDER TO COMPLY WITH THE SEX OFFENDER INFORMATION REGISTRATION ACT
To (service number and rank (if applicable) and name of person), (address), (date of birth), (sex):
You have been convicted of or found not responsible on account of mental disorder for (insert description of offence), a designated offence (or if more than one offence, designated offences) within the meaning of the definition “designated offence” in section 227 of the National Defence Act.
Therefore, it is ordered:
1. You must report for the first time to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under subsection 4(1) of that Act.
2. You must subsequently report to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under section 4.1 or 4.3 of that Act, for a period of ____ years after this order is made (or if paragraph 227.02(2)(c) or any of subsections 227.02(2.1) to (5) of the National Defence Act applies, for life).
3. Information relating to you will be collected under sections 5 and 6 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.
4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.
5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act or, if applicable, the Canadian Forces Provost Marshal, to correct the information.
6. You have the right to appeal this order.
7. You have the right to apply to a court martial or, if applicable, a court under section 490.015 of the Criminal Code to terminate this order, and the right to appeal any decision of a court martial that the Chief Military Judge causes to be convened to try the issue or any decision of the court.
8. If you are found to have contravened this order, you may be subject to punishment under the National Defence Act or the Criminal Code.
9. If you are found to have provided false or misleading information, you may be subject to punishment under the National Defence Act or the Criminal Code.
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. 2008-1507 effective 12 September 2008; P.C. 2011-1111 effective 29 September 2011]
NOTE
For the purpose of section 7.1 of the Sex Offender Information Registration Act, the following places have been designated as registration centres by the Sex Offender Information Registration Regulations (Canadian Forces):
(a) in Canada, the Office of the Provost Marshal and the place located on each defence establishment set out in the schedule to the Regulations that serves as the station of military police; and
(b) outside Canada, each place that serves as the station of military police that carries out law enforcement operations.
An officer or non-commissioned member of the Regular Force or the Primary Reserve or any other person subject to the Code of Service Discipline, who is subject to an order to comply with the Sex Offender Information Registration Act, is required to report to a registration centre designated in the Sex Offender Information Registration Regulations (Canadian Forces).
(C) [12 September 2008]
Section 9.3 – Restitution
“203.9 A court martial that imposes a sentence on an offender or directs that an offender be discharged absolutely may, on application of the Director of Military Prosecutions or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, if the amount is readily ascertainable;
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount that is not more than all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; and
(c) in the case of bodily harm or threat of bodily harm to a person — who at the relevant time was the offender’s spouse, common-law partner or child or any other member of the offender’s household — as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount that is not more than the actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, if the amount is readily ascertainable.”
(C) [1 September 2018]
112.582 – STATEMENT ON RESTITUTION FORM
(1) For the purposes of subsection 203.81(4) of the National Defence Act, the statement on restitution form is:
STATEMENT ON RESTITUTION
(Subsection 203.81(4) of the National Defence Act)
Canada,
Province of ………,
(territorial division).
To the court martial that is sentencing (name the offender) who was convicted of an offence under the National Defence Act, or was discharged under section 203.8 of that Act.
I, (name of declarant), declare that (check the appropriate box):
□ | I am not seeking restitution for the losses and damages I suffered as the result of the commission of the offence. |
□ | I am seeking restitution in the amount of $ …….. for the following losses and damages I suffered as the result of the commission of the offence. |
I declare that I have suffered the following losses and damages as the result of the commission of the offence:
(Complete the following table if seeking restitution.)
Description (describe each loss and damage) |
Amount of loss and damage (state the amount of each loss and damage) |
1…….. | ……. |
2…….. | ……. |
3…….. | ……. |
4…….. | ……. |
I understand that the amount of my losses and damages must be readily ascertainable by the court martial. For that purpose, I am responsible for providing the court martial with all necessary documents, including bills, receipts and estimates, in support of my claim for restitution.
Dated this ………..day of ………….20…. , at……….
Signature of declarant
(2) The prosecutor must file the form with the court martial.
(G) [P.C. 2022-0268 effective 20 June 2022]
Section 10 – Procedure Generally
112.59 – AMENDMENT OF CONVENING ORDER AND CHARGE SHEET
(1) Section 188 of the National Defence Act provides:
“188. (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person's defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.
(2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.
(3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.”
(2) A court martial may, at any time during a trial, amend the convening order or charge sheet where it appears to the court that there is:
(a) an error or omission in the name or description of the accused person or a person named in the convening order; or
(b) an error or omission of a clerical nature.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (2)(a)]
112.60 – PROCEDURE ON INCIDENTAL ISSUES
Where the prosecutor or the accused person raises an issue or matter for which no specific procedure is provided, the other party has the right to respond, and the person raising the issue or matter has the right to reply.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
112.61 – PROCEDURE ON VOIR DIRE
(1) A voir dire may be used to determine the admissibility of any evidence.
(2) The procedure in a voir dire shall be:
(a) the party seeking to establish the admissibility of the evidence may present evidence as the party sees fit and witnesses may be called (see article 112.31 – Examination of Witnesses);
(b) the other party may present evidence as that party sees fit and witnesses may be called;
(c) the party seeking to establish the admissibility of the evidence, and then the other party, may make a closing address; and
(d) the court shall determine the admissibility of the evidence and announce its decision.
(G) [P.C. 1999-1305 effective 1 September 1999]
112.62 – ADJOURNMENT
(1) Section 189 of the National Defence Act provides:
“189. A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable.”
(2) When the court martial adjourns, the judge shall, if practical, set a date and time at which it will re-assemble.
(3) A closed court martial shall reopen before adjourning.
(G) [P.C. 1999-1305 effective 1 September 1999]
112.63 – VIEW BY COURT MARTIAL
Section 190 of the National Defence Act provides:
“190. A court martial may view any place, thing or person.”
(G) [112.63: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
NOTE
Subject to any order that the public be excluded that is made under subsection 180(2) of the National Defence Act (see article 112.10 – Public Proceedings), any proceedings during a view must be public.
(C) [1 September 2018]
112.64 – PRELIMINARY PROCEEDINGS – VIDEO LINK
(1) Where the prosecutor and the accused person agree, and the judge so orders, the accused, the prosecutor or the judge may appear at preliminary proceedings (see article 112.03 – Preliminary Proceedings) by any means that allow the judge, the prosecutor and the accused to engage in simultaneous visual and oral communication.
(2) Paragraph (1) does not apply in respect of an accused person’s plea of guilty at preliminary proceedings.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
112.65 – APPEARANCE OF WITNESSES – VIDEO LINK
(1) Where the prosecutor and the accused person agree and the judge so orders, the evidence of a witness may be taken at any time during court martial proceedings by any means that allow the witness to testify in a location other than the courtroom and to engage in simultaneous visual and oral communication with the court, the prosecutor and the accused person.
(2) The taking of evidence may include the examination of documents and filing of exhibits if suitable arrangements have been made with the judge for the receipt and filing of original documents or exhibits.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1)]
112.655 – DISSOLUTION OF COURTS MARTIAL
A court martial shall be deemed to be dissolved when it has terminated its proceedings in respect of all accused persons.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
NOTE
A court martial may also be dissolved in the case of the death or disability of a member of the court martial panel or an accused person (see section 196.1 of the National Defence Act).
(C) [1 September 1999]
112.66 – AUDIO RECORDINGS AND MINUTES OF PROCEEDINGS
(1) The Court Martial Administrator shall ensure that primary and back-up audio recordings are made, and minutes of proceedings are prepared, for courts martial and other proceedings before a military judge.
(2) The minutes of proceedings shall include
(a) a written record of the principal decisions of the court martial or military judge, including findings, sentences and decisions in respect of motions;
(b) a copy of any document issued or made by the court martial or military judge, including orders, directions, and warrants;
(c) a copy of any undertaking given by a party to the proceeding; and
(d) to the extent that the following are required for the purposes of an appeal under section 230, 230.1, 230.2 or 248.9 of the National Defence Act or a review under section 159.9 or 248.8 of that Act,
(i) a transcript of the audio recording of the hearing at which the decision or disposition that is the subject of the appeal or review was made,
(ii) any document that was entered as an exhibit at the proceeding to which the appeal relates, unless it is impracticable to forward it to the Court Martial Appeal Court, and
(iii) a photograph or written description of any exhibit that is not a document or that is impracticable to forward to the Court Martial Appeal Court.
(3) The Court Martial Administrator shall ensure that a transcript referred to in sub-subparagraph (2)(d)(i), and any other transcript of an audio recording referred to in paragraph (1) that is prepared at his or her request, is prepared by a reporter and is signed and dated by the reporter to certify that it accurately reflects the audio recording.
(4) The minutes of proceedings for a court martial or other proceeding before a military judge that terminated before the day on which this article comes into force may, if they have not been completed by that day, be prepared in accordance with this article.
(G) [P.C. 2018-433 effective 1 September 2018]
112.665 – CUSTODY DURING COURT MARTIAL PROCEEDINGS
(1) An accused person is not in custody during proceedings before a court martial unless the accused person was in custody immediately prior to the commencement of the proceedings or is ordered into custody during the proceedings.
(2) An accused person may be ordered into custody or released from custody for all or part of the proceedings, including any adjournment by the military judge presiding at the court martial.
(G) [P.C. 1999-1305 effective 1 September 1999]
112.67 – ABSENCE OF MEMBERS OF COURT MARTIAL PANEL
(1) No member of a court martial panel may be absent during the trial prior to being discharged except when the judge sits alone.
(2) No officer or non-commissioned member may be added to a court martial panel after the court martial panel has been sworn.
(G) [P.C. 1999-1305 effective 1 September 1999]
112.671 – ABSCONDING ACCUSED PERSON
Section 194.1 of the National Defence Act provides:
“194.1 (1) An accused person who absconds during the course of their trial by court martial, whether or not the person is charged jointly with another person, is deemed to have waived their right to be present at their trial.
(2) A military judge presiding at the court martial of an accused person who absconds may
(a) continue the trial and proceed to a judgment or verdict and, if the accused person is found guilty, impose a sentence in their absence; or
(b) if a warrant is issued under section 249.23, adjourn the trial to await the appearance of the accused person.
(3) A military judge who adjourns a court martial may at any time continue the court martial if he or she is satisfied that it is no longer in the interests of military justice to await the appearance of the accused person.
(4) A court martial may draw an inference adverse to the accused person from the fact that the accused person has absconded.
(5) An accused person who reappears at their trial is not entitled to have any part of the proceedings that were conducted in their absence reopened unless the court martial is satisfied that because of exceptional circumstances it is in the interests of military justice to reopen the proceedings.
(6) Counsel for an accused person who absconds is not deprived, as result of the absconding, of any authority he or she may have to continue to represent the accused person.”
(C) [1 September 2018]
NOTE
A warrant issued under section 249.23 of the National Defence Act must be in the form set out in paragraph 105.061(2).
(C) [1 September 2018]
112.672 – PROCEDURE – DECISION AS TO WHETHER ACCUSED PERSON HAS ABSCONDED
(1) This article sets out the procedure to be followed to determine if an accused person has absconded during the course of their trial by court martial.
(2) The prosecutor, followed by counsel for the accused person, may make a statement.
(3) The prosecutor, followed by counsel for the accused person, may present evidence, including sworn witness testimony.
(4) The court martial may call witnesses at any time if it wishes to hear further evidence.
(5) The prosecutor, followed by counsel for the accused person, may make representations. The prosecutor may reply to any representations made by counsel for the accused person.
(6) The court martial shall announce its decision.
(G) [P.C. 2018-433 effective 1 September 2018]
112.675 – TRIAL OF SEVERAL ACCUSED PERSONS BY SAME COURT MARTIAL
(1) Where a court martial is convened to try more than one accused person other than by joint trial (see article 110.09 – Joint Trials), the court martial, once sworn, shall proceed with one case, postpone the other cases and try them afterwards in succession.
(2) Where two or more accused persons are tried separately by the same court martial upon charges arising out of the same transaction, the court may, if it considers that the interests of military justice so require,
(a) adjourn each case after its finding has been pronounced until it has pronounced its findings in respect of each accused person;
(b) comply with the applicable provisions of Section 9 (Sentence);
(c) close to determine sentence for all accused persons;
(d) re-open and pronounce the sentence to each accused person; and
(e) terminate the proceedings in respect of each accused person.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (1), portion before (2)(a), (2)(a), (2)(c), (2)(d), (2)(e)]
Section 11 – Evidence
112.68 – RULES OF EVIDENCE TO BE APPLIED
Subsection 181(1) of the National Defence Act provides:
“181. (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.”
(G) [112.68: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
NOTE
The Military Rules of Evidence are the rules made by the Governor in Council under subsection 181(1) of the National Defence Act (see QR&O Volume IV, Appendix 1.3).
(C) [1 September 1999; 1 September 2018]
112.69 – ADMISSIBILITY OF DOCUMENTS AND RECORDS
Subsection 182(1) of the National Defence Act provides:
“182. (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules.”
(G) [112.69: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
(C) [Note to article 112.69: repealed on 1 September 2018]
112.70 – EVIDENCE ON COMMISSION
Sections 184 and 185 of the National Defence Act provide:
“184. (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martial
(a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;
(b) who is absent from the country in which the trial is held; or
(c) whose attendance is not readily obtainable for a good and sufficient reason.
(2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.
(3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.
(4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.
185. The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).”
(G) [112.70: repealed by P.C. 2018-433 effective 1 September 2018]
(C) [1 September 2018]
112.71 - STATUTORY DECLARATIONS
Subsection 182(2) of the National Defence Act provides:
“182. (2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:
(a) if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;
(b) if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and
(c) at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.”
112.72 – STATUTORY DECLARATION FORM
If a prosecutor or accused person wishes to introduce at a court martial a statutory declaration made in the manner prescribed by the Canada Evidence Act as referred to in subsection 182(2) of the National Defence Act, it shall be prepared in the following form:
STATUTORY DECLARATION
CANADA
Province of _____ (If taken elsewhere, describe place)
IN THE MATTER OF a court martial convened for the trial of:
(name of the accused person)
I, (name of person making declaration) solemnly declare that:
(particulars of evidence set out in numbered paragraphs)
and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.
DECLARED before me at ______,
this _________ day of (month), (year).
(signature of person before whom declaration made)
(name of person before whom declaration is made)
(title of person before whom declaration is made)
(signature of person making declaration)
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2014-0575 effective 1 June 2014; P.C. 2018-433 effective 1 September 2018]
NOTES
(A) Section 41 of the Canada Evidence Act allows for a statutory declaration to be received by any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter.
(B) The person making a statutory declaration must appear before one of the authorities referred to in note A) of this article and it must be established to the satisfaction of that authority that the person making the declaration declares it to be true and is fully aware of the contents of the declaration.
(C) [1 September 1999; 1 June 2014 – Note (A)]
112.73 – SERVICE OF STATUTORY DECLARATION
In accordance with subsection 182(2) of the National Defence Act, a statutory declaration that one party wishes to introduce may be served by that party directly on the other party. A statutory declaration that a prosecutor wishes to introduce may be forwarded to the commanding officer of the accused person in order to serve that person within the required time limit.
(G) [P.C. 2014-0575 effective 1 June 2014]
[112.74 to 112.79: not allocated]
Section 12 – Stay of Proceedings
112.80 – EFFECT OF A STAY OF PROCEEDINGS
(1) Except as prescribed in paragraph (2) and to the extent that a finding can be substituted by the Governor in Council under section 249.12 of the National Defence Act or by the Court Martial Appeal Court under subsection 239(1) of that Act, a stay of proceedings shall have the effect of a finding of not guilty to the charge on which it has been directed.
(2) Where in dealing with alternative charges a stay of proceedings has been directed under subparagraph (8)(a) of article 112.05 (Procedure to be Followed at a Court Martial) and subsequently a change of plea to not guilty is directed under article 112.26 (Change of Plea During Trial), the stay of proceedings shall be deemed to be removed and the trial shall proceed as if the accused person had pleaded not guilty in the first instance to all the alternative charges.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018 – (2)]
Section 13 – Post-Trial Unit Administrative Action
112.81 – ADMINISTRATIVE ACTION
(1) The Director of Military Prosecutions shall ensure that the following persons are informed of the outcome of a trial by court martial or an application to a military judge under subsection 148(2) or (4), section 215.1 or subsection 215.2(1) of the National Defence Act:
(a) [Repealed]
(b) the commanding officer of the person who is the subject of the trial or application;
(c) the Judge Advocate General;
(d) the Provost Marshal; and
(e) on request, any victim.
(2) The Director of Military Prosecutions shall ensure that a copy of any order made by a court martial or a military judge — other than an interlocutory order — is forwarded to
(a) the commanding officer of the person who is the subject of the trial or proceeding before the military judge;
(b) the Provost Marshal; and
(c) on request, any victim.
(3) If a court martial imposes a sentence on an offender or discharges them absolutely, the offender’s commanding officer shall
(a) take the necessary action to ensure that any sentence is carried out; and
(b) cause the appropriate entries to be made to the offender’s service records, including the conduct sheet.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C 2018-433 effective 1 September 2018; P.C. 2022-0268 effective 20 June 2022 – (1)(a) is repealed, (1)(e) and (2)(c) are replaced]
112.82 – RETURN OF EXHIBITS
When a court martial or other proceeding before a military judge is complete, the Court Martial Administrator shall ensure that, to the extent possible, each exhibit is returned to the person apparently entitled to it unless the Chief Military Judge is satisfied that the exhibit is required for the purposes of an investigation or another proceeding.
(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]
[112.83 to 112.99: not allocated]
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