ARCHIVED - QR&O: Volume II - Chapter 112 Procedure at Courts Martial (Historical Version: 18 July 2008 to 11 September 2008)

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

The Volume II Chapter 112: Procedure at Courts Martial replaces this content.

Section 1 – General

112.01 – APPLICATION

This chapter applies to the procedure at courts martial.

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

112.02 – DEFINITION

In this chapter, unless the context otherwise requires, "accused" means the accused personally or legal counsel acting on behalf of the accused.

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

112.03 – PRELIMINARY PROCEEDINGS

(1) Section 187 of the National Defence Act provides

(2) Section 191.1 of the National Defence Act provides

(C) (18 July 2008)

112.04 – REQUIREMENT FOR REASONABLE NOTICE – PRELIMINARY APPLICATIONS AND OBJECTIONS

(1) Subject to paragraph (3), an application made under section 187 or 191.1 of the National Defence Act (see article 112.03 – Preliminary Proceedings) or paragraph 112.05(3) or (5) (Procedure to be followed at a Court Martial) may only be heard and determined if reasonable notice in writing is given to the Chief Military Judge or, if a court martial has been convened, the military judge assigned to preside at the court martial and to the opposing party. (18 July 2008)

(2) Notice pursuant to paragraph (1) shall include:

1. 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;
2. the documentary, affidavit or other evidence to be used at the hearing of the application; and
3. 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 of 4 July 2008 effective 18 July 2008)

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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:

1. members of the public shall be admitted;
2. the prosecutor and the legal counsel and the adviser, if any, of the accused, shall take their places;
3. the military judge assigned to preside at the court martial shall open the court; and
4. the accused shall be brought before the court.

(3) When paragraph (2) has been complied with, the judge:

1. shall read the convening order of the court martial; and
2. shall ask the prosecutor and the accused 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:

1. take the oath prescribed in article 112.16 (Oath to be Taken by Judge Presiding at Court Martial);
2. swear the court reporter (see article 112.18 – Oath to be Taken by Court Reporter); and
3. 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:

1. the prosecutor shall read the charge sheet;
2. the accused may object to the trial being proceeded with (see article 112.24 – Pleas in Bar of Trial);
3. the accused may apply for further particulars on the ground that the accused 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;
4. where a charge sheet contains more than one charge, the court may, if it considers the interests of justice require it, proceed with separate trials and direct the order in which those trials shall be held; and
5. 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). (18 July 2008)

(6) The judge shall ask the accused to plead guilty or not guilty to each charge and, where the accused refuses to plead, a plea of not guilty shall be recorded.

(7) Where the accused pleads guilty to any charge, the procedure prescribed in article 112.25 (Acceptance of Plea of Guilty) shall be followed before that plea is accepted.

(8) After all pleas have been recorded:

1. 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;
2. 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
3. where the accused 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), (18 July 2008)

1. the judge shall identify the members of the court martial panel;
2. the judge shall ask the prosecutor and the accused whether they object to any of the members and, where there is an objection, the procedure described in article 112.14 shall be followed;
3. the members shall take the oath prescribed in article 112.17 (Oath to be Taken by Members of Court Martial Panel);
4. the judge shall advise the members on the charges in respect of which the accused has pleaded not guilty; and
5. 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. (18 July 2008)

(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, hear arguments as to whether a prima facie case has been made out against the accused, and:

1. if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce the accused not guilty on that charge; or
2. 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 may make an opening address (see article 112.29 – Opening Address by Accused).

(15) The accused shall proceed with the case for the defence.

(16) If the accused desires to testify, the accused shall be sworn by the judge and shall testify either with or without being examined by the accused's legal counsel. If the accused has been cross-examined, the accused may be re-examined or give further evidence as if the accused were a witness being re-examined (see article 112.31 – Examination of Witnesses).

(17) The accused 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:

1. the prosecutor may address the court as to finding;
2. the accused may address the court as to finding;
3. in the case of a General Court Martial, the judge shall (18 July 2008)
   1. instruct the members of the court martial panel on the law relating to the case,
   2. sum up the evidence, and
   3. instruct the members of the court martial panel as to any findings they may make, including special findings (see article 112.42 – Special Findings);
4. the court shall close to determine its finding (in the case of General Courts Martial, see article 112.41 – Determination of Finding – General Court Martial); (18 July 2008)
5. 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
6. 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 (18 July 2008)
   1. where offences have been charged in the alternative and the accused has been found guilty of one of the alternative charges, pronounce the finding of guilty on the charge and
      1. 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
      2. if, on any other alternative charge, the evidence does not prove the offence, pronounce a finding of not guilty on the charge, and
   2. in respect of all other charges, pronounce the finding on each charge.

(20) Where the accused has been found not guilty of all the charges before the court, the court shall terminate the proceedings in respect of the accused.

(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 by Same Court Martial), the judge shall discharge the members of the court martial panel and determine sentence in accordance with Section 9.

(22) Subject to article 112.06 (Termination Procedure When Sentence Includes Detention or Imprisonment) and Section 9.1 (DNA Orders), the court shall terminate the proceedings in respect of the accused. (27 July 2000)

(23) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

(G) (P.C. 2008-1319 of 4 July 2008 effective 18 July 2008)

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 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)

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

1. record in the minutes of proceedings the date and the time at which the sentence was imposed; and
2. ask whether the accused 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 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 does not deliver an Application for Release Pending Appeal immediately after sentencing, the judge shall

1. advise the accused that, if it is intended to make an application for release pending appeal to the court, the accused must comply with article 118.03 within 24 hours;
2. subject to an application pursuant to article 118.03, terminate the proceedings in respect of the accused; and
3. remain available until the judge has ensured that the accused has not delivered an Application for Release Pending Appeal within 24 hours of sentencing in accordance with article 118.03.

(4) Where the accused 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) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

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

112.07 – QUESTIONS OF LAW OR MIXED LAW AND FACT – GENERAL COURT MARTIAL

(1) Section 191 of the National Defence Act provides

(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 of 4 July 2008 effective 18 July 2008)

(112.08 AND 112.09 INCLUSIVE: NOT ALLOCATED)

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Section 3 – Admission to Courts Martial

112.10 – WHO MAY BE PRESENT AT A COURT MARTIAL

(1) Section 180 of the National Defence Act provides:

(2) Where any order is made under subsection 180(2) of the National Defence Act, the order shall specify the ground on which it is made.

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

NOTES

(A) When the court martial has made an order under subsection 180(2) of the National Defence Act, members of the public remain excluded unless the court martial orders them to be re-admitted.

(B) When the court martial decides to exclude the public, the court may permit officers or non-commissioned members who have been detailed to attend for the purposes of instruction to remain in the courtroom.

(C) (1 September 1999)

112.11 – EXCLUSION OF PERSONS WHEN COURT IS CLOSED

When the court is closed, no person, other than the court, shall be present.

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

NOTE

A "closed court" should not be confused with a court sitting "in camera". A court is said to be "closed" when no person is present with the court during its deliberation on any matter. The court is "in camera" when its proceedings are not open to the public but the accused, the prosecutor and the representatives, if any, of the accused are present.

(C) (1 September 1999)

(112.12 AND 112.13 INCLUSIVE: NOT ALLOCATED)

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Section 4 – Objections

112.14 – OBJECTIONS TO THE CONSTITUTION OF THE COURT MARTIAL

(1) Section 186 of the National Defence Act provides:

(2) Where the accused or prosecutor objects to the judge or any member of the court martial panel, witnesses may be called:

1. in support of the objection by the party making the objection;
2. in rebuttal of the objection by the other party; and
3. 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,

1. the court shall hear any evidence and argument with respect to the objection;
2. the judge shall address the members of the court martial panel with respect to the objection; and
3. 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 Court Martial Members).

(13) Where an objection is allowed in respect of a member of the court martial panel other than the senior member,

1. the judge shall designate an alternate to replace the member; and
2. 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 may object to any replacement appointed.

(15) An objection under this article and the manner in which it was disposed of shall be recorded in the minutes of the proceedings.

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

NOTE

Where under article 110.09 (Joint Trials) a court martial is convened to try persons jointly, each accused has the right to object under this article and, where an objection by any of the accused is allowed, the officer or non-commissioned member in respect of whom the objection was allowed must be replaced.

(C) (1 September 1999)

112.15 – OBJECTION TO INTERPRETER

(1) The prosecutor and the accused may object to an interpreter on the ground of partiality or lack of competence.

(2) Where the accused or prosecutor objects to the interpreter, witnesses may be called:

1. in support of the objection by the party making the objection;
2. in rebuttal of the objection by the other party; and
3. 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 of 8 July 1999 effective 1 September 1999)

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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:

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

112.17 – 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:

(G) (P.C. 1999-1305 of 8 July 1999 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:

(G) (P.C. 1999-1305 of 8 July 1999 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:

(G) (P.C. 1999-1305 of 8 July 1999 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:

(G) (P.C. 1999-1305 of 8 July 1999 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:

(2) The form of a solemn affirmation shall be as prescribed for the appropriate oath, but the words "I solemnly affirm" shall be substituted for the words "I swear", and the words "So help me God" shall be omitted.

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

(112.22 AND 112.23 INCLUSIVE : NOT ALLOCATED)

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Section 6 – Pleas

112.24 – PLEAS IN BAR OF TRIAL

(1) An accused may plead in bar of trial that:

1. the court has no jurisdiction;
2. 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;
3. the accused 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;
4. the accused is unfit to stand trial on account of mental disorder (see Chapter 119 – Mental Disorder); or
5. the charge does not disclose a service offence.

(2) The accused 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):

1. by the accused, to support the plea;
2. by the prosecutor, in rebuttal of the plea; and
3. 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 and then by the prosecutor, and the accused 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 of the decision.

(6) Where a plea in bar of trial has been allowed to all charges, the court shall terminate the proceedings.

(7) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

(8) Where a plea in bar of trial has been allowed but not to all charges, the court shall:

1. terminate the proceedings in respect of any charge to which a plea has been allowed; and
2. proceed with the trial of any charge to which a plea has not been allowed.

(9) At the conclusion of the trial, the Director of Military Prosecutions shall cause the referral authority (see article 109.03) and the accused's commanding officer to be informed as to any charge in respect of which the plea has been allowed.

(10) Where a plea in bar of trial has been made, the plea and the decision in respect of the plea shall be recorded in the minutes of the proceedings.

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

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.

(C) (1 September 1999)

112.25 – ACCEPTANCE OF PLEA OF GUILTY

(1) Where the accused pleads guilty to a charge, the judge shall:

1. explain the offence to which the accused has pleaded guilty and inform the accused of the maximum punishment that the court can impose;
2. ask the accused whether the statement of particulars in respect of the offence to which the accused has pleaded guilty is accurate; and
3. explain the difference in the procedure to be followed if the plea is accepted.

(2) The prosecutor shall inform the court whether the prosecutor concurs in the acceptance of the plea of guilty as made where the accused pleads guilty

1. to an alternative charge that is less serious than any other and the accused has pleaded not guilty to the more serious alternative charge;
2. not to the offence charged but to a related or less serious offence prescribed in sections 133 to 136 of the National Defence Act (see article 103.62 – Conviction of Related or Less Serious Offences);
3. not to the offence charged but to an attempt to commit that offence (see article 103.63 – Conviction of Attempt to Commit Offence); or
4. to the offence charged or to a related or less serious offence on facts that differ materially from the facts alleged in the statement of particulars in the charge sheet but are nevertheless sufficient to establish the offence to which the accused has pleaded guilty.

(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) The court may accept and record a plea of guilty after paragraph (1) has been complied with, unless it appears to the court that:

1. the accused did not understand the nature or gravity of the charge to which the accused pleaded guilty;
2. the statement of particulars in the charge sheet is in some material respect disputed by the accused; or
3. for any other reason the interests of justice make it expedient that a plea of guilty should not be accepted.

(6) Where, under paragraph (2), the prosecutor does not concur in the acceptance of a plea of guilty, the trial shall proceed as if the accused had initially pleaded not guilty.

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

112.26 – CHANGE OF PLEA DURING TRIAL

(1) Where the court has accepted a plea of guilty under article 112.25 (Acceptance of Plea of Guilty), it shall, at any time during the trial and if it considers the interests of 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 consider its finding, the accused may, with the permission of the court, change a plea of not guilty to a plea of guilty.

(3) Where the court permits a change of plea under paragraph (2), the court shall comply with the provisions of article 112.25.

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

(112.27 : NOT ALLOCATED)

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Section 7 – Opening Addresses and Evidence of Witnesses

112.28 – OPENING ADDRESS BY PROSECUTOR

The opening address by the prosecutor:

1. shall not contain any assertion that the prosecutor does not intend to substantiate by evidence;
2. should not be unnecessarily detailed; and
3. 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 of 8 July 1999 effective 1 September 1999)

112.29 – OPENING ADDRESS BY ACCUSED

The opening address by the accused:

1. shall not contain any assertion that the accused does not intend to substantiate by evidence;
2. should not be unnecessarily detailed; and
3. should contain a brief statement of the nature and general effect of the evidence that the accused proposes to call for the defence.

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

(112.30: NOT ALLOCATED)

112.31 – EXAMINATION OF WITNESSES

(1) The prosecutor and the accused may call witnesses.

(2) The prosecutor and the accused 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 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:

1. shall not answer the question until the decision of the judge as to the objection or claim has been announced; and
2. 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 shall refrain from further examination or comment on the matter.

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

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:

1. recall and question any witness; and
2. call and question any further witnesses.

(2) Where a witness has been called or recalled, the prosecutor and the accused 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 shall be given the opportunity to make a further closing address in respect of the evidence adduced.

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

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 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 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:

1. outside the court room, but in the presence of the prosecutor and legal counsel for the accused; or
2. behind a screen or other device that would allow the complainant not to see the accused.

(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:

1. arrangements are made for the accused 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 to engage in simultaneous visual and oral communication with the court; and
2. the accused is permitted to communicate with legal counsel while following the testimony.

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

(112.34 TO 112.39 INCLUSIVE: NOT ALLOCATED)

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Section 8 – Findings

112.40 – DIRECTIONS RESPECTING FINDINGS

(1) Subject to paragraph (2), article 112.42 (Special Findings), 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 not guilty on each charge, unless it concludes that the evidence proves beyond reasonable doubt that the accused:

1. committed the offence charged;
2. attempted to commit the offence charged (see article 103.63 – Conviction of Attempt to Commit Offence); or
3. committed a related or less serious offence prescribed in sections 133 to 136 of the National Defence Act (see article 103.62 – Conviction of Related or Less Serious Offences).

(2) Where offences have been charged in the alternative and the court finds the accused guilty of one of the alternative charges, the court shall:

1. 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
2. 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 of 8 July 1999 effective 1 September 1999)

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:

(B) The following example shows the possible findings on alternative charges. The charges may be assumed to have been:

The finding on these charges might be in any one of the following forms:

(C) If the accused were charged with an offence under section 114 of the National Defence Act of stealing $500 and the court concluded that the accused had stolen only $250, the form of special finding (see article 112.42 – Special Findings) applicable would be:

(D) An example of the finding of guilty on a related or less serious offence is as follows:

The accused 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:

(E) Where the accused is found guilty of attempting to commit the offence charged, the form of the finding in a theft case would be:

(F) Where the issue of whether the accused 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:

(G) Where evidence is given that the accused 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:

(C) (1 September 1999)

112.41 – DETERMINATION OF FINDING – GENERAL COURT MARTIAL

(1) Sections 192 and 192.1 of the National Defence Act provide (18 July 2008)

(2) The members of the court martial panel shall vote orally in succession, beginning with the member lowest in rank.

(3) At any time during deliberations to determine the finding, the members of the court martial panel may, in open court, request

1. the judge to give further instructions upon the law applicable; and
2. any portion of the recorded evidence to be read aloud.

(G) (P.C. 2008-1319 of 4 July 2008 effective 18 July 2008)

112.42 – SPECIAL FINDINGS

(1) Section 138 of the National Defence Act provides:

(2) Where the accused is found guilty of an attempt to commit the offence charged (see article 103.63 – Conviction of Attempt to Commit Offence), or of a related or less serious offence (see article 103.62 – Conviction of Related or Less Serious Offences), the finding on that charge shall include a statement of the offence of which the accused has been found guilty.

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

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 of 8 July 1999 effective 1 September 1999)

(112.44 TO 112.46 INCLUSIVE: NOT ALLOCATED)

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Section 9 – Sentence

112.47– MILITARY JUDGE DETERMINES SENTENCE

Section 193 of the National Defence Act provides

(C) (18 July 2008)

112.48 – SENTENCING

(1) Section 148 of the National Defence Act provides:

(2) In determining sentence, the court shall:

1. take into consideration any indirect consequence of the finding or of the sentence; and
2. impose a sentence commensurate with the gravity of the offence and the previous character of the offender.

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

NOTES

(A) For the punishments that may be imposed by a service tribunal, see Chapter 104 (Punishments and Sentences).

(B) Where a person is already under an unexpired sentence that has been suspended, see article 104.16 (Incarceration Under More Than One Sentence).

(C) (1 September 1999)

112.49 – SIMILAR OFFENCE MAY BE ADMITTED AND DEALT WITH

(1) Section 194 of the National Defence Act provides:

(2) The court shall record in the minutes of the proceedings whether it has acceded to or rejected a request made under subsection 194(1) of the National Defence Act.

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

112.50 – RECOMMENDATIONS BY COURT MARTIAL PANEL – PAROLE ELIGIBILITY – MURDER

(1) Subject to paragraph (2), where the members of a court martial panel find an accused guilty of second degree murder, the judge shall, before discharging the court martial panel, put to the members the following question:

(2) Where members of a court martial panel find the accused guilty of first degree murder or second degree murder and the accused was under the age of sixteen at the time of the commission of the offence, the judge shall, before discharging the court martial panel, put to the members the following question:

(3) The court shall close for the members of the court martial panel to make their recommendation.

(4) The decision in respect of the recommendation 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.

(5) When the decision in respect of the recommendation has been made, the court shall reopen and the senior member shall announce the recommendation of the court martial panel.

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

112.51 – SENTENCING PROCEDURE

(1) The prosecutor shall, so far as is practical, cause the court to be informed of

1. the age and particulars of service of the accused;
2. the decorations and record of distinguished service, if any, of the accused;
3. the length of time spent by the accused in custody awaiting trial; and
4. any previous convictions by a service tribunal or civil court.

(2) Subject to article 112.52 (Disputed Facts – Duty of Court), the prosecutor may cause the court to be informed of the particulars of the accused prescribed in paragraph (1) by reading and submitting to the court a document signed by or on behalf of the commanding officer or by or on behalf of the Chief of the Defence Staff and containing those particulars (see article 111.17 – Documents Provided to the Prosecutor).

(3) Subject to article 112.52, the prosecutor shall inform the court of the circumstances of any offence to which a plea of guilty has been accepted.

(4) The prosecutor, followed by the accused, may call evidence that is relevant to sentence (see article 112.31 – Examination of Witnesses).

(5) The prosecutor may, with the permission of the court, call evidence in rebuttal of any evidence called by the accused.

(6) The prosecutor, followed by the accused, may address the court as to the appropriate sentence to be imposed.

(7) The court shall determine and pronounce the sentence (see articles 112.47 – Military Judge Determines Sentence and 112.48 – Sentencing).

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

112.52 – DISPUTED FACTS – DUTY OF COURT

Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at trial.

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

112.53 – DISPUTED FACTS – STANDARD OF PROOF

Where there is a dispute with respect to any fact that is relevant to the determination of a sentence

1. subject to subparagraph (b), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
2. the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the accused.

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

112.54 – PROVEN FACTS – GENERAL COURT MARTIAL

In the case of a General Court Martial, the court (18 July 2008)

1. shall accept as proven all facts, express or implied, that are essential to the court martial panel's finding of guilty; and
2. 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) (P.C. 2008-1319 of 4 July 2008 effective 18 July 2008)

112.55 – COURT MAY ORDER PRODUCTION OF EVIDENCE

The court may, on its own motion, and after hearing argument from the prosecutor and the accused, require the production of any evidence or compel the appearance of any person if it would assist the court in determining the appropriate sentence.

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

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Section 9.1 – DNA Orders

112.56 – DNA ORDER

A DNA order for purposes of sections 196.14 or 196.15 of the National Defence Act shall be in Form A or Form B, as applicable:

Form A

ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES
FOR FORENSIC DNA ANALYSIS

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

Whereas ________ has been found guilty under the National Defence Act of _____ , an offence
(name of offender) (offence)

that is a primary designated offence within the meaning of section 196.11 of that Act;

Therefore, you are authorized to take from ____________________ or cause to be taken
(name of offender)
by a person acting under your direction, the number of samples of bodily substances that are 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 provided that, if the person taking the samples is not a peace officer, he or she take the samples 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 this _______ day of _________ , ______ at ____________________.
(month) (year)

______________________________
(Signature of presiding military judge)

__________________ Court Martial

(G) (P.C. 2000-1110 of 27 July 2000)

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Form B

ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES
FOR FORENSIC DNA ANALYSIS

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

Whereas _________ has been found guilty under the National Defence Act of _________ , an
(name of offender) (offence)

offence that is:

(a) a secondary designated offence within the meaning of section 196.11 of that Act, or

(b) a designated offence within the meaning of that section committed before subsection 5(1) of the DNA Identification Act came into force;

Whereas I have considered the offender's previous convictions by a service tribunal or civil court, the nature of the offence and the circumstances surrounding its commission and the impact that this order would have on the offender's privacy and security of the person;

And whereas I am satisfied that it is in the best interests of the administration of justice to make this order;

Therefore, you are authorized to take from ______________ or cause to be taken by a
(name of offender)
person acting under your direction, the number of samples of bodily substances that are 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 provided that, if the person taking the samples is not a peace officer, he or she take the samples 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 this _______ day of _________ , ______ at ____________________.
(month) (year)

______________________________
(Signature of presiding military judge)

__________________ Court Martial

(G) (P.C. 2000-1110 of 27 July 2000)

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 order under section 196.14 or 196.15 of the National Defence Act, is prescribed in article 106.12 (Report by Peace Officer).

(C) (27 July 2000)

112.57 – AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES

(1) An ex parte application for purposes of section 196.24 of the National Defence Act shall be in the following form:

APPLICATION FOR AN AUTHORIZATION FOR TAKING ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

I,_________________ , ___________________ , of ________________________, apply for
(name of peace officer) (occupation) (base or unit/territorial division)

an authorization to take additional samples of bodily substances for forensic DNA analysis.

Whereas samples of bodily substances were taken from _______________ for the purpose of
(name of offender)

forensic DNA analysis, in execution of an order made under section 196.14 or 196.15 of the National Defence Act (attach a copy of the order);

And whereas on ____________ it was determined that a DNA profile could not be derived
(day/month/year)

from the samples for the following reasons:

Therefore, I request that an authorization be granted under subsection 196.24(1) of the National Defence Act to take from ________________ the number of additional samples of
(name of offender)

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 that Act and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

Dated this _______ day of _________ , ______ at ____________________.
(month) (year)

_________________________
(Signature of applicant)

(G) (P.C. 2000-1110 of 27 July 2000)

(2) An authorization for purposes of section 196.24 of the National Defence Act shall be in the following form:

AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

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

Whereas samples of bodily substances were taken from _______________ for the purpose of
(name of offender)

forensic DNA analysis, in execution of an order made under section 196.14 or 196.15 of the National Defence Act;

Whereas on ____________ it was determined that a DNA profile could not be derived
(day/month/year)

from the samples for the following reasons:

And whereas _________________ , a peace officer of the said base or unit/territorial division,
(name of peace officer)

has applied for an authorization for the taking of the number of additional samples of bodily substances from _________________ that is reasonably required for forensic DNA analysis by
(name of offender)

means of the investigative procedures described in subsection 196.2(1) of that Act;

Therefore, the peace officers of the said unit or base/territorial division are authorized to take from _________________ or cause to be taken by a person acting under their direction those
(name of offender)

additional samples, 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 provided that, if the person taking the samples is not a peace officer, he or she take the samples 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 this ______ day of __________ , _______ at _____________________ .
(month) (year)

_____________________________
(Signature of military judge)

(G) (P.C. 2000-1110 of 27 July 2000)

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 : NOT ALLOCATED)

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Section 10 – Procedure Generally

112.59 – AMENDMENT OF CONVENING ORDER AND CHARGE SHEET

(1) Section 188 of the National Defence Act provides:

(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:

1. an error or omission in the name or description of the accused or a person named in the convening order; or
2. an error or omission of a clerical nature.

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

112.60 – PROCEDURE ON INCIDENTAL ISSUES

Where the prosecutor or the accused 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 of 8 July 1999 effective 1 September 1999)

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:

1. 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);
2. the other party may present evidence as that party sees fit and witnesses may be called;
3. the party seeking to establish the admissibility of the evidence, and then the other party, may make a closing address; and
4. the court shall determine the admissibility of the evidence and announce its decision.

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

112.62 – ADJOURNMENT

(1) Section 189 of the National Defence Act provides:

(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 of 8 July 1999 effective 1 September 1999)

112.63 – VIEW BY COURT MARTIAL

(1) Section 190 of the National Defence Act provides:

(2) Subject to article 112.10 (Who May be Present at a Court Martial), any proceedings during a view must be in open court.

(3) Any evidence taken during the course of a view must be recorded in the minutes of the proceedings.

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

112.64 – PRELIMINARY PROCEEDINGS – VIDEO LINK

(1) Where the prosecutor and the accused 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's plea of guilty at preliminary proceedings.

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

112.65 – APPEARANCE OF WITNESSES – VIDEO LINK

(1) Where the prosecutor and the accused 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.

(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 of 8 July 1999 effective 1 September 1999)

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.

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

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 (see section 196.1 of the National Defence Act).

(C) (1 September 1999)

112.66 – MINUTES OF PROCEEDINGS

(1) A primary and back-up recording shall be made of all court martial proceedings in open court on audio tape, on any other electronic recording device or by any other means determined to be appropriate by the presiding judge.

(2) As soon as practical after the proceedings of a court martial are terminated, the minutes of the proceedings shall be prepared.

(3) The minutes of the proceedings shall include:

1. a transcript of the recording of the proceedings; and
2. where practical, a copy of any exhibit accepted by the court martial.

(4) The minutes of the proceedings shall be dated and signed by:

1. the court reporter, to certify that the minutes of the proceedings accurately record the proceedings of the court martial; and
2. the judge, to certify that the minutes accurately reflect
   1. any address, direction or decision by the judge; and
   2. the findings, the sentence, and the date and time that the sentence was imposed.

(5) A copy of the minutes of the proceedings shall be forwarded to the Judge Advocate General.

(6) The recording and the minutes of the proceedings of the court martial shall be retained until the final disposition of any appeal, or for such longer period as the Chief Military Judge may consider appropriate (see article 101.26 – Duties and Functions of Court Martial Administrator).

(7) The exhibits accepted by a court martial shall be retained until final disposition of any appeal, unless they are disposed of in accordance with article 101.055 (Restitution of Property and Return of Exhibits).

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

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 of 8 July 1999 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 of 8 July 1999 effective 1 September 1999)

112.675 – TRIAL OF SEVERAL ACCUSED BY SAME COURT MARTIAL

(1) Where a court martial is convened to try more than one accused 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 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 justice so require:

1. adjourn each case after its finding has been pronounced until it has pronounced its findings in respect of each accused;
2. comply with the applicable provisions of Section 9 (Sentence);
3. close to determine sentence for all accused;
4. re-open and pronounce the sentence to each accused; and
5. terminate the proceedings in respect of each accused.

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

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Section 11 – Evidence

112.68 – RULES OF EVIDENCE TO BE APPLIED

Subsection 181(1) of the National Defence Act provides:

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

NOTE

(C) (1 September 1999)

112.69 – ADMISSIBILITY OF DOCUMENTS AND RECORDS

Subsection 182(1) of the National Defence Act provides:

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

NOTE

For the rules as to the documents and records admissible under subsection 182(1) of the National Defence Act, see the Military Rules of Evidence (QR&O Volume IV, Appendix 1.3).

(C) (1 September 1999)

112.70 – EVIDENCE ON COMMISSION

Sections 184 and 185 of the National Defence Act provide:

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

(112.71: NOT ALLOCATED)

112.72 – STATUTORY DECLARATIONS

(1) Subsection 182(2) of the National Defence Act provides:

(2) Where the prosecutor or accused wishes to introduce at a court martial a declaration referred to in subsection 182(2) of the National Defence Act, it should 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)

TO WIT:

I, _____________________________________________________________
(name of person making declaration)

do 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, and by virtue of the Canada Evidence Act.

DECLARED before me

at _______________________________________ ,

this _________ day of ___________ , __________.
(month) (year)

_______________________________ ______________________________________
(signature of person before whom declaration made) (signature of person making declaration)

________________________________________
(appointment)

(3) A declaration may be served by the party seeking to introduce it directly upon the other party or may be delivered to the commanding officer of the other party for service by him upon the other party.

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

NOTES

(A) Section 41 of the Canada Evidence Act permits a declaration to be made before any judge, notary public, justice of the peace, police or 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)

(112.73 TO 112.79 INCLUSIVE: NOT ALLOCATED)

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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 had pleaded not guilty in the first instance to all the alternative charges.

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

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Section 13 – Post-Trial Unit Administrative Action

112.81 – ADMINISTRATIVE ACTION WHERE COURT MARTIAL COMPLETED

Where a sentence has been imposed upon an offender at a court martial, the offender's commanding officer shall:

1. take the necessary action to ensure that the sentence is carried out; and
2. cause the appropriate entries to be made to the offender's service records, including the conduct sheet (see DAOD 7006-0, Conduct Sheets).

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

(112.82 TO 112.99 INCLUSIVE: NOT ALLOCATED)