QR&O: Volume II – Chapter 113 – Suspension of Punishment and Intermittent Sentences

Effective 1 january 2006, the official version of the QR&O is that published in PDF format on this website.

The consolidation of the QR&O is current as of 3 July 2019. The last modifications to the QR&O came into force on 28 June 2019.

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Amendment List:

  • 1 September 2018 – new chapter: 113

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

113.01 – DEFINITIONS

The following definitions apply in this chapter.

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

“victim” has the same meaning as in section 203 of the Act. (victime)

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

Section 1 – Suspension of Imprisonment or Detention by Service Tribunal or Court Martial Appeal Court

113.02 – INTERPRETATION

For greater certainty, in this section, “suspension order” means an order that is made under section 215 of the Act to suspend the execution of a punishment of imprisonment or detention.

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

113.03 – POWER TO MAKE SUSPENSION ORDER

Subsection 215(1) of the Act provides:

“215. (1) If an offender is sentenced to imprisonment or detention, the execution of the punishment may be suspended by the service tribunal that imposes the punishment or, if the offender’s sentence is affirmed or substituted on appeal, by the Court Martial Appeal Court.”

(C) [1 September 2018]

NOTE

See section 216.1 of the Act regarding the effects of suspension before or after committal.

(C) [1 September 2018]

113.04 – CONDITIONS OF SUSPENSION

Subsections 215(2) and (3) of the Act provide:

“215. (2) In suspending the execution of a punishment, the service tribunal or the Court Martial Appeal Court, as the case may be, shall impose the following conditions on the offender:

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

(b) to attend any hearing under section 215.2 when ordered to do so by the appropriate person referred to in any of paragraphs 215.2(1)(a) to (c); and

(c) in the case of a person who is not an officer or a non-commissioned member, to notify the Provost Marshal in advance of any change of name or address, and to promptly notify the Provost Marshal of any change of employment or occupation.

(3) A service tribunal or the Court Martial Appeal Court may, in addition to the conditions described in subsection (2), impose any reasonable conditions.”

(C) [1 September 2018]

113.05 – FORM OF SUSPENSION ORDER

A suspension order may be in the following form:

SUSPENSION ORDER

(Section 215 of the National Defence Act)

Whereas on (day, month, year) at (place), (service number and rank (if applicable) and full name of the offender) (the “offender”) was convicted of the following offence(s): (state the offence(s));

Whereas the offender has been sentenced to (imprisonment or detention) for a period of (days, months or years);

And whereas it is appropriate, in the circumstances, to suspend the execution of the punishment;

It is ordered that:

(a) the execution of the punishment is suspended;

(b) the offender must, for the duration of the suspension, comply with the following conditions:

(i) keep the peace and be of good behaviour,

(ii) attend any hearing under section 215.2 of the National Defence Act when ordered to do so by (their commanding officer or a military judge), and

(iii) if the offender is not an officer or a non-commissioned member, notify the Provost Marshal in advance of any change of name or address and promptly notify the Provost Marshal of any change of employment or occupation; and

(c) the offender must also, for the duration of the suspension, comply with the following condition(s): (list any other reasonable conditions; if none, delete this paragraph).

As a matter of information:

Breach of any conditions of this order may, following a hearing, result in the revocation of the suspension and incarceration of the offender.

Failure to comply with conditions, without lawful excuse, is an offence under section 101.1 of the National Defence Act.

The offender may apply, under section 215.1 of the National Defence Act, to vary any of the conditions set out in paragraph (c) above or to substitute other conditions for those conditions. (Delete this sentence if paragraph (c) has been deleted)

The suspension terminates if it is revoked or if the punishment is remitted under section 217 of the National Defence Act.

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

Signature of commanding officer or military judge making the order

(Rank and name of commanding officer or military judge making the order)

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

NOTE

A commanding officer who makes a suspension order under subsection 215(1) of the Act has an obligation to comply with paragraph 107.14(5.1).

(C) [1 September 2018]

113.06 – OBLIGATIONS OF SERVICE TRIBUNAL

(1) A service tribunal that makes a suspension order shall

(a) cause a copy of the order to be given to the offender and, if the service tribunal is a court martial, the Director of Military Prosecutions;

(b) explain to the offender the conditions of the order and the substance of sections 101.1 and 215.2 of the Act;

(c) explain to the offender that they may make an application under section 215.1 of the Act, if applicable; and

(d) take reasonable steps to ensure that the offender understands the order and the explanations given.

(2) For greater certainty, failure to comply with paragraph (1) does not affect the validity of the suspension order.

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


Sub-Section 1 – Variation or Substitution of Conditions of Suspension Order

113.07 – APPLICATION TO VARY OR SUBSTITUTE CONDITIONS

Section 215.1 of the Act provides:

“215.1 On application by an offender, a condition imposed under subsection 215(3) may be varied, or another condition substituted for that condition, by

(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

(b) a military judge, in the case of a condition imposed by a court martial; or

(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.”

(C) [1 September 2018]

113.08 – NOTICE OF APPLICATION

(1) An offender who is subject to a suspension order and who wishes to apply, under section 215.1 of the Act, to vary a condition of the order or to substitute another condition for such a condition shall provide a notice of application to

(a) their commanding officer, if the condition was imposed at a summary trial; or

(b) the Chief Military Judge, if the condition was imposed by a court martial.

(2) The notice of application shall include:

(a) a description of the proposed variation or substitution and the reason for the change;

(b) a copy of the suspension order, together with a copy of any applicable amending order (see articles 113.14 – Obligations at Conclusion of Hearing and 113.27 – Obligations at Conclusion of Hearing);

(c) a description of any evidence that the offender intends to rely on at the hearing referred to in article 113.12 (Hearing Procedure);

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

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

(3) If the offender provides the Chief Military Judge with a notice of application under paragraph (1), the offender shall provide a copy of the notice to their commanding officer and the Director of Military Prosecutions as soon as feasible.

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

NOTE

An application to a judge of the Court Martial Appeal Court to vary or substitute conditions under section 215.1 of the Act is made by motion. See the Court Martial Appeal Court Rules.

(C) [1 September 2018]

113.09 – ASSISTANCE TO OFFENDER

(1) The commanding officer of an offender who is subject to a suspension order that was made at a summary trial shall, as soon as feasible after the earlier of the following events, appoint an officer — or, in exceptional circumstances, a non-commissioned member above the rank of sergeant — to assist the offender:

(a) the offender requests assistance in having a condition of the order varied or having another condition substituted for such a condition, or

(b) the offender provides the commanding officer with a notice of application under paragraph 113.08(1).

(2) The commanding officer shall appoint a particular person requested by the offender if the exigencies of the service permit and the person agrees to be appointed.

(3) The officer or non-commissioned member who is appointed shall, to the extent desired by the offender,

(a) assist in the preparation of the notice of application and advise the offender regarding witnesses, evidence or any other matter relating to the hearing before the commanding officer; and

(b) assist the offender during the hearing, including speaking on their behalf.

(4) If the officer or non-commissioned member who has been appointed is unable or unwilling to continue to assist the offender, the commanding officer shall appoint a substitute as soon as feasible.

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

113.10 – REPRESENTATION OF OFFENDER

(1) Every offender who is subject to a suspension order that was made by a court martial or the Court Martial Appeal Court has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application under section 215.1 of the Act to vary a condition of the order or to substitute another condition.

(2) An offender who wishes to be provided with legal counsel by the Director of Defence Counsel Services in respect of an application referred to in paragraph (1) shall notify their commanding officer and, in the case of an application to a military judge, may specify a preference for a particular legal officer who assists the Director.

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

(4) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (3), assign legal counsel to the offender and attempt to give effect to any specified preference for a particular legal officer.

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

113.11 – NOTICE OF HEARING

(1) A commanding officer shall, as soon as feasible after receiving a notice of application under paragraph 113.08(1), cause a notice of hearing to be delivered to the offender.

(2) The Chief Military Judge shall, as soon as feasible after receiving a notice of application under paragraph 113.08(1), ensure that a notice of hearing is provided to the offender, the offender’s commanding officer and the Director of Military Prosecutions.

(3) A notice of hearing shall include

(a) the date, time and place of the hearing referred to in article 113.12 (Hearing Procedure); and

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

(4) The offender’s commanding officer shall, if the Chief Military Judge requests it, cause a notice of hearing that is referred to in paragraph (2) to be delivered to the offender as soon as feasible.

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

113.12 – HEARING PROCEDURE

(1) The following definitions apply in this article.

“hearing” means a hearing before a commanding officer or a military judge to consider an application made under section 215.1 of the Act. (audience)

“offender” includes the offender’s legal counsel or the officer or non-commissioned member appointed to assist the offender, as the case may be. (contrevenant)

(2) At the beginning of the hearing,

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

(b) the following persons shall take their places:

(i) the offender,

(ii) in the case of a hearing before a military judge, the Director of Military Prosecutions, and

(iii) the officer presiding at the hearing.

(3) In the case of a hearing before a military judge, the judge shall identify themselves and ask if the offender or the Director of Military Prosecutions objects to the application being heard by the judge. Any objection shall be disposed of in accordance with article 112.14 (Objections to the Constitution of the Court Martial), with any necessary changes.

(4) The officer presiding at the hearing shall

(a) take the oath prescribed in article 108.27 (Oath to be Taken by Officer Authorized to Preside at Summary Trial) or article 112.16 (Oath to be Taken by Judge Presiding at Court Martial), as the case may be; and

(b) if they are a military judge,

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

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

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

(5) The offender may make a statement that is pertinent to the application, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions.

(6) The offender may present evidence, including sworn witness testimony, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions.

(7) The officer presiding at the hearing may call witnesses at any time if the officer wishes to hear further evidence.

(8) The offender may make representations, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions. The offender may reply to any representations made by the Director.

(9) The officer presiding at the hearing shall announce their decision and, after complying with article 113.14 (Obligations at Conclusion of Hearing), terminate the hearing.

(10) If a procedural matter is not provided for in this article,

(a) the provisions of Chapter 108 apply, with any necessary changes, in the case of a hearing before a commanding officer; and

(b) the provisions of Chapter 112 apply, with any necessary changes, in the case of a hearing before a military judge.

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

NOTE

A commanding officer should obtain legal advice from a legal officer before making a decision under section 215.1 of the Act.

(C) [1 September 2018]

113.13 – APPEARANCE BY TECHNOLOGICAL MEANS

(1) The commanding officer or military judge presiding at a hearing referred to in article 113.12 (Hearing Procedure) may, with the consent of the offender, permit any person to appear at the hearing by any means that allows the hearing participants, including witnesses, to engage in simultaneous visual and oral communication, so long as the offender is given the opportunity to communicate privately with their legal counsel or the officer or non-commissioned member who has been appointed to assist the offender, as the case may be.

(2) In the case of a hearing before a military judge, the consent of the Director of Military Prosecutions is also required.

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

113.14 – OBLIGATIONS AT CONCLUSION OF HEARING

(1) If the commanding officer or military judge presiding at a hearing referred to in article 113.12 (Hearing Procedure) approves the offender’s application to vary a condition of the suspension order or to substitute another condition for such a condition, the officer or judge shall

(a) make an amending order to give effect to the decision;

(b) cause a copy of the amending order to be given to the offender and either

(i) the Provost Marshal, in the case of a hearing before a commanding officer, or

(ii) the Director of Military Prosecutions, in the case of a hearing before a military judge; and

(c) explain the changes to the conditions to the offender and take reasonable steps to ensure that the offender understands the explanation given.

(2) An amending order may be in the following form:

AMENDING ORDER

(Section 215.1 of the National Defence Act)

Whereas on (day, month, year) at (place), (service number and rank (if applicable) and full name of the offender) (the “offender”) was sentenced to (imprisonment or detention) for a period of (days, months or years);

Whereas the service tribunal that sentenced the offender suspended the punishment on (day, month, year);

And whereas the offender has applied to vary a condition of the suspension order or to substitute a new condition in place of an existing condition;

(If either of the following two paragraphs does not apply, delete it; add further paragraphs if necessary)

It is ordered that (identify existing condition) is varied so that it now reads: (state condition, as varied).

It is ordered that the following condition (state new condition) is substituted for (identify existing condition).

As a matter of information, the complete list of conditions that the offender must now comply with is as follows:

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

(b) attend any hearing under section 215.2 of the National Defence Act when ordered to do so by (the offender’s commanding officer or a military judge);

(c) if the offender is not an officer or a non-commissioned member, notify the Provost Marshal in advance of any change of name or address and promptly notify the Provost Marshal of any change of employment or occupation.

(Add paragraphs indicating any other conditions of the suspension order that are unaffected by this amending order as well as the new or varied conditions)

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

Signature of commanding officer or military judge making the order

(Rank and name of commanding officer or military judge making the order)

(3) If the commanding officer or military judge refuses the offender’s application, the officer or judge shall remind the offender that they remain bound by the suspension order, as amended by any amending order.

(4) For greater certainty, failure to comply with subparagraph (1)(b) or (c) does not affect the validity of the amending order.

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

NOTE

A commanding officer who makes an amending order under subparagraph 113.14(1)(a) also has an obligation to comply with paragraph 107.14(5.1).

(C) [1 September 2018]

113.15 – RETURN OF EXHIBITS – HEARING BEFORE COMMANDING OFFICER

If exhibits were submitted at a hearing referred to in article 113.12 (Hearing Procedure) before a commanding officer, the commanding officer of the unit, base or element at which the exhibits are detained shall ensure that, after the termination of the hearing and to the extent possible, each exhibit is returned to the person apparently entitled to it unless it is required for the purposes of an investigation or another proceeding.

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

113.16 – DECISION BY A JUDGE OF THE COURT MARTIAL APPEAL COURT

(1) The Director of Military Prosecutions shall ensure that the following persons are informed of any decision by a judge of the Court Martial Appeal Court under section 215.1 of the Act:

(a) the referral authority;

(b) the offender’s commanding officer;

(c) the Judge Advocate General;

(d) the Provost Marshal; and

(e) on request, any victim of the offence to which the suspended punishment relates.

(2) The Director of Military Prosecutions shall ensure that a copy of any order made by a judge of the Court Martial Appeal Court under section 215.1 of the Act is forwarded to

(a) the offender’s commanding officer;

(b) the Provost Marshal; and

(c) on request, any victim of the offence to which the suspended punishment relates.

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


Sub-Section 2 – Breach of Condition of Suspension Order

113.17 – APPLICATION – BREACH OF CONDITION

Subsection 215.2(1) of the Act provides:

“215.2 (1) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under section 215 may be made by

(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial;

(b) a military judge, in the case of a condition imposed by a court martial; or

(c) a judge of the Court Martial Appeal Court, in the case of a condition imposed by that Court.”

(C) [1 September 2018]

113.18 – CLASSES OF CANADIAN FORCES REPRESENTATIVES

For the purposes of subsection 215.2(1) of the Act, the classes of representatives of the Canadian Forces who may apply for a determination of whether an offender has breached a condition of a suspension order are

(a) officers, if the condition was imposed at a summary trial; and

(b) the Director of Military Prosecutions and the legal officers who assist the Director, if the condition was imposed by a court martial or the Court Martial Appeal Court.

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

NOTE

In the case of a condition imposed at a summary trial, the representative of the Canadian Forces should obtain legal advice from a legal officer before making an application for a determination of whether the offender has breached the condition.

(C) [1 September 2018]

113.19 – NOTICE OF APPLICATION

(1) A representative of the Canadian Forces who wishes to apply, under subsection 215.2(1) of the Act, for a determination of whether an offender has breached a condition of a suspension order shall provide a notice of application to

(a) the offender’s commanding officer, if the condition was imposed at a summary trial; or

(b) the Chief Military Judge, if the condition was imposed by a court martial.

(2) The notice of application shall include

(a) a detailed description of the alleged breach;

(b) a copy of the suspension order, together with a copy of any applicable amending order (see articles 113.14 – Obligations at Conclusion of Hearing and 113.27 – Obligations at Conclusion of Hearing);

(c) a description of the evidence that the representative of the Canadian Forces intends to rely on at the hearing referred to in article 113.24 (Hearing Procedure);

(d) the names of any witnesses that the representative of the Canadian Forces intends to call at the hearing;

(e) the relief sought, including any proposed changes to the conditions of the suspension order; and

(f) an estimate of the length of time required for the representative of the Canadian Forces to present their application.

(3) The representative of the Canadian Forces shall, as soon as feasible after complying with paragraph (1), ensure that a copy of the notice of application is provided to

(a) the offender; and

(b) the offender’s commanding officer, if the condition that is alleged to have been breached was imposed by a court martial.

(4) If the condition that is alleged to have been breached was imposed by a court martial, the offender’s commanding officer shall, if the representative of the Canadian Forces requests it, cause the offender’s copy of the notice of application to be delivered to the offender as soon as feasible.

(5) A person who delivers the copy of a notice of application to the offender under paragraph (4) shall complete a confirmation of delivery in the following form:

CONFIRMATION OF DELIVERY

At (time) hours on (day, month, year), I personally delivered to (service number and rank (if applicable) and full name of the offender) a copy of a notice of application relating to the alleged breach of a condition of a suspension order.

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

Signature of the person who made the delivery

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

(6) The offender’s commanding officer shall ensure that the completed confirmation of delivery is forwarded to the representative of the Canadian Forces as soon as feasible.

(7) If the representative of the Canadian Forces provides a notice of application to the Chief Military Judge and does not make a request under paragraph (4), the representative shall, as soon as feasible after the offender receives their copy of the notice, inform the offender’s commanding officer that it has been received.

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

113.20 – PROVISION OF INFORMATION – APPLICATION TO COMMANDING OFFICER

(1) A representative of the Canadian Forces who has provided an offender’s commanding officer with a notice of application under paragraph 113.19(1) shall ensure that the following information is disclosed to the offender:

(a) information that the representative intends to rely on as evidence at the hearing before the commanding officer; and

(b) information that tends to show that the offender did not breach a condition of the suspension order.

(2) The information shall be disclosed in sufficient time to permit the offender to prepare for the hearing.

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

113.21 – ASSISTANCE TO OFFENDER

(1) A commanding officer who receives a notice of application under paragraph 113.19(1) shall, as soon as feasible, appoint an officer — or, in exceptional circumstances, a non-commissioned member above the rank of sergeant — to assist the offender.

(2) The commanding officer shall appoint a particular person requested by the offender if the exigencies of the service permit and the person agrees to be appointed.

(3) The officer or non-commissioned member who is appointed shall, to the extent desired by the offender,

(a) assist in the preparation of the offender’s case and advise the offender regarding witnesses, evidence or any other matter relating to the hearing before the commanding officer; and

(b) assist the offender during the hearing, including speaking on their behalf.

(4) If the officer or non-commissioned member who has been appointed is unable or unwilling to continue to assist the offender, the commanding officer shall appoint a substitute as soon as feasible.

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

113.22 – REPRESENTATION OF OFFENDER

(1) Every offender who is subject to a suspension order that was made by a court martial or the Court Martial Appeal Court has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application under subsection 215.2(1) of the Act for a determination of whether the offender has breached a condition of the order.

(2) If the application referred to in paragraph (1) relates to a suspension order that was made by a court martial, the offender’s commanding officer shall, as soon as feasible after the offender has received a copy of the notice of application, ask them whether they wish to be provided with legal counsel by the Director of Defence Counsel Services and, if they do, whether they have a preference for a particular legal officer who assists the Director.

(3) If the application referred to in paragraph (1) relates to a suspension order that was made by the Court Martial Appeal Court, the offender shall, if they wish to be provided with legal counsel by the Director of Defence Counsel Services, notify their commanding officer.

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

(5) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (4), assign legal counsel to the offender and, in the case of a request under paragraph (2), attempt to give effect to any specified preference for a particular legal officer.

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

113.23 – NOTICE OF HEARING

(1) A commanding officer shall, as soon as feasible after receiving a notice of application under paragraph 113.19(1), issue a notice of hearing and cause it to be delivered to the representative of the Canadian Forces and the offender.

(2) If a representative of the Canadian Forces has provided the Chief Military Judge with a notice of application under paragraph 113.19(1), the military judge who is assigned to preside at the hearing referred to in article 113.24 (Hearing Procedure) shall, as soon as feasible after the representative confirms that the offender has received a copy of the notice,

(a) issue a notice of hearing; and

(b) cause the notice of hearing to be delivered to the representative, the offender and the offender’s commanding officer.

(3) A notice of hearing shall include

(a) the date, time and place of the hearing;

(b) if applicable, the name of the military judge who is assigned to preside at the hearing; and

(c) an order, directed to the offender, requiring them to attend the hearing at the specified date, time and place.

(4) The offender’s commanding officer shall, if the military judge assigned to preside at the hearing requests it, cause the notice of hearing that is to be delivered to the offender under paragraph (2) to be delivered to them as soon as feasible.

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

CONFIRMATION OF DELIVERY

At (time) hours on (day, month, year), I personally delivered to (service number and rank (if applicable) and full name of the offender) a notice of hearing relating to the alleged breach of a condition of a suspension order.

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

Signature of the person who made the delivery

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

(6) The offender’s commanding officer shall ensure that the completed confirmation of delivery is forwarded to the Court Martial Administrator as soon as feasible.

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

113.24 – HEARING PROCEDURE

(1) The following definitions apply in this article.

“hearing” means a hearing before a commanding officer or military judge to consider an application made under subsection 215.2(1) of the Act. (audience)

“offender” includes the offender’s legal counsel or the officer or non-commissioned member appointed to assist the offender, as the case may be. (contrevenant)

(2) At the beginning of the hearing,

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

(b) the following persons shall take their places:

(i) the offender,

(ii) the representative of the Canadian Forces, and

(iii) the officer presiding at the hearing.

(3) In the case of a hearing before a military judge, the judge shall identify themselves and ask if the offender or the representative of the Canadian Forces objects to the application being heard by the judge. Any objection shall be disposed of in accordance with article 112.14 (Objections to the Constitution of the Court Martial), with any necessary changes.

(4) The officer presiding at the hearing shall

(a) take the oath prescribed in article 108.27 (Oath to be Taken by Officer Authorized to Preside at Summary Trial) or article 112.16 (Oath to be Taken by Judge Presiding at Court Martial), as the case may be; and

(b) if they are a military judge,

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

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

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

(5) The representative of the Canadian Forces, followed by the offender, may make a statement that is pertinent to the application.

(6) The representative of the Canadian Forces, followed by the offender, may present evidence, including sworn witness testimony.

(7) The officer presiding at the hearing may call witnesses at any time if the officer wishes to hear further evidence.

(8) The representative of the Canadian Forces, followed by the offender, may make representations. The representative of the Canadian Forces may reply to any representations made by the offender.

(9) The officer presiding at the hearing shall

(a) announce their determination as to whether there has been a breach of the conditions of the suspension order;

(b) if applicable, take one of the actions set out in subsection 215.2(2) of the Act; and

(c) after complying with the applicable obligations in article 113.27 (Obligations at Conclusion of Hearing), terminate the hearing.

(10) If a procedural matter is not provided for in this article,

(a) the provisions of Chapter 108 apply, with any necessary changes, in the case of a hearing before a commanding officer; and

(b) the provisions of Chapter 112 apply, with any necessary changes, in the case of a hearing before a military judge.

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

NOTE

A commanding officer should obtain legal advice from a legal officer before making a determination under subsection 215.2(1) of the Act.

(C) [1 September 2018]

113.25 – APPEARANCE BY TECHNOLOGICAL MEANS

The commanding officer or military judge presiding at a hearing referred to in article 113.24 (Hearing Procedure) may, with the consent of the offender and the representative of the Canadian Forces, permit any person to appear at the hearing by any means that allows the hearing participants, including witnesses, to engage in simultaneous visual and oral communication, so long as the offender is given the opportunity to communicate privately with their legal counsel or the officer or non-commissioned member who has been appointed to assist the offender, as the case may be.

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

113.26 – CONSEQUENCES OF BREACH OF CONDITION

Subsection 215.2(2) of the Act provides:

“215.2 (2) If a person referred to in any of paragraphs (1)(a) to (c) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

(a) revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so; or

(b) vary any conditions imposed under subsection 215(3) or section 215.1 and add or substitute other conditions as he or she sees fit.”

(C) [1 September 2018]

NOTE

A commanding officer who revokes the suspension of a punishment under paragraph 215.2(2)(a) of the Act has an obligation to comply with paragraph 107.14(5.2).

(C) [1 September 2018]

113.27 – OBLIGATIONS AT CONCLUSION OF HEARING

(1) A commanding officer or military judge presiding at a hearing referred to in article 113.24 (Hearing Procedure) who determines that the offender has breached a condition of the suspension order shall, if the officer or judge varies a condition of the suspension order or adds or substitutes other conditions,

(a) make an amending order to give effect to the decision;

(b) cause a copy of the amending order to be given to the offender and either

(i) the Provost Marshal, in the case of a hearing before a commanding officer, or

(ii) the Director of Military Prosecutions, in the case of a hearing before a military judge; and

(c) explain the changes to the conditions to the offender and take reasonable steps to ensure that the offender understands the explanation given.

(2) An amending order may be in the following form:

AMENDING ORDER

(Section 215.2 of the National Defence Act)

Whereas on (day, month, year) at (place), (service number and rank (if applicable) and full name of the offender) (the “offender”) was sentenced to (imprisonment or detention) for a period of (days, months or years);

Whereas the service tribunal that sentenced the offender suspended the punishment on (day, month, year);

And whereas the offender has breached the following condition(s) of the suspension order: (state condition(s));

(Delete any of the following three paragraphs that does not apply and add further paragraphs if necessary)

It is ordered that (identify existing condition) is varied so that it now reads: (state condition, as varied).

It is ordered that the following condition (state new condition) is substituted for (identify existing condition).

It is ordered that the following condition is added to the conditions of the suspension order: (state new condition).

As a matter of information, the complete list of conditions that the offender must now comply with is as follows:

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

(b) attend any hearing under section 215.2 of the National Defence Act when ordered to do so by (the offender’s commanding officer or a military judge);

(c) if the offender is not an officer or a non-commissioned member, notify the Provost Marshal in advance of any change of name or address and promptly notify the Provost Marshal of any change of employment or occupation.

(Add paragraphs indicating any other conditions of the suspension order that are unaffected by this amending order as well as the new or varied conditions)

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

Signature of commanding officer or military judge making the order

(Rank and name of commanding officer or military judge making the order)

(3) If the commanding officer or military judge determines that the offender has not breached a condition of the suspension order or decides not to take any action in response to a breach, the officer or judge shall remind the offender that they remain bound by the order, as amended by any amending order.

(4) For greater certainty, failure to comply with subparagraph (1)(b) or (c) does not affect the validity of the amending order.

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

NOTE

A commanding officer who makes an amending order under subparagraph 113.27(1)(a) also has an obligation to comply with paragraph 107.14(5.1).

(C) [1 September 2018]

113.28 – RETURN OF EXHIBITS – HEARING BEFORE COMMANDING OFFICER

If exhibits were submitted at a hearing referred to in article 113.24 (Hearing Procedure) before a commanding officer, the commanding officer of the unit, base or element at which the exhibits are detained shall ensure that, after the termination of the hearing and to the extent possible, each exhibit is returned to the person apparently entitled to it unless it is required for the purposes of an investigation or another proceeding.

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

113.29 – DECISION BY A JUDGE OF THE COURT MARTIAL APPEAL COURT

(1) The Director of Military Prosecutions shall ensure that the following persons are informed of any determination or decision by a judge of the Court Martial Appeal Court under section 215.2 of the Act:

(a) the referral authority;

(b) the offender’s commanding officer;

(c) the Judge Advocate General;

(d) the Provost Marshal; and

(e) on request, any victim of the offence to which the suspended punishment relates.

(2) The Director of Military Prosecutions shall ensure that a copy of any order made by a judge of the Court Martial Appeal Court under subsection 215.2(2) of the Act is forwarded to

(a) the offender’s commanding officer;

(b) the Provost Marshal; and

(c) on request, any victim of the offence to which the suspended punishment relates.

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

113.30 – FAILURE TO ATTEND

Section 215.3 of the Act provides:

“215.3 A person who orders an offender to attend for a hearing under section 215.2 may, if the offender fails to attend as ordered, issue a warrant for the offender’s arrest in the form prescribed in regulations made by the Governor in Council.”

(C) [1 September 2018]

113.31 – ARREST WARRANT – FAILURE TO ATTEND

For the purposes of section 215.3 of the Act, the form of arrest warrant is:

ARREST WARRANT – FAILURE TO ATTEND

(Section 215.3 of the National Defence Act)

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

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

Whereas, on (day, month, year), I issued a notice of hearing ordering the offender to attend on (day, month, year) at (time) at (place) for a hearing under section 215.2 of the National Defence Act;

And whereas the offender failed to attend the hearing as ordered;

You are commanded, in Her Majesty’s name, to arrest the offender without delay and to bring him or her before me to be dealt with according to law.

(See section 34.1 of the Interpretation Act and delete the following two paragraphs if they are not applicable)

Whereas I have reasonable grounds to believe that the offender is or will be present in (describe dwelling house);

You are authorized to enter the dwelling-house referred to above for the purpose of arresting the offender if, at the time of entry, you have reasonable grounds to believe that the offender is present in the dwelling-house.

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

Signature of commanding officer or judge issuing the arrest warrant

(Rank (if applicable) and name of commanding officer or judge issuing the arrest warrant)

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

NOTE

A commanding officer should obtain legal advice from a legal officer before issuing an arrest warrant for failure to attend a hearing under section 215.2 of the Act.

(C) [1 September 2018]

113.32 – TERM IF SUSPENDED PUNISHMENT PUT INTO EXECUTION

Subsection 215(4) of the Act provides:

“215. (4) If a punishment that has been suspended under subsection (1) is put into execution, the term of the punishment is deemed to commence on the day on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following the pronouncement of the sentence.”

(C) [1 September 2018]


Section 2 – Suspension of a Punishment of Imprisonment or Detention by a Suspending Authority

113.33 – DEFINITION OF “SUSPENDING AUTHORITY”

Subsection 216(1) of the Act provides:

“216. (1) In this section and section 217, “suspending authority” means any authority prescribed to be a suspending authority in regulations made by the Governor in Council.”

(C) [1 September 2018]

113.34 – PRESCRIBED SUSPENDING AUTHORITIES

The following authorities are prescribed as suspending authorities for the purposes of sections 216 and 217 of the Act in respect of a punishment of imprisonment or detention:

(a) the Chief of the Defence Staff;

(b) an officer commanding a command;

(c) an officer commanding a formation; and

(d) the commanding officer of the offender upon whom the punishment was imposed.

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

113.35 – POWER TO SUSPEND PUNISHMENT

Subsection 216(2) of the Act provides:

“216. (2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment, if there are imperative reasons relating to military operations or the offender’s welfare.”

(C) [1 September 2018]

NOTE

See section 216.1 of the Act regarding the effects of a suspension before or after committal.

(C) [1 September 2018]

113.36 – OBLIGATION TO PROVIDE REASONS FOR SUSPENSION

Subsection 216(2.1) of the Act provides:

“216. (2.1) A suspending authority that suspends a punishment shall, unless the punishment was included in a sentence that was imposed at a summary trial, provide written reasons for the suspension to any person prescribed in regulations made by the Governor in Council.”

(C) [1 September 2018]

113.37 – PERSONS TO WHOM REASONS FOR SUSPENSION ARE TO BE PROVIDED – COURT MARTIAL OR APPEAL COURT

For the purposes of subsection 216(2.1) of the Act, the persons who must be provided with written reasons for a suspension as soon as feasible are:

(a) the offender;

(b) the offender’s legal counsel;

(c) the offender’s commanding officer, unless that officer is the suspending authority;

(d) the next superior officer, if any, to whom the suspending authority is responsible in matters of discipline;

(e) the Director of Military Prosecutions;

(f) the Judge Advocate General;

(g) the Chief Military Judge; and

(h) if the punishment was imposed, affirmed or substituted by the Court Martial Appeal Court or the Supreme Court of Canada, the Chief Justice of the applicable Court.

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

113.38 – INFORMATION PROVIDED TO VICTIMS

If a punishment — except one imposed at a summary trial — is suspended under subsection 216(2) of the Act, the Director of Military Prosecutions shall, if a victim of the offence to which the punishment relates requests it, inform them whether the punishment was suspended on the basis of imperative reasons relating to military operations or the offender’s welfare.

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

113.39 – ADMINISTRATIVE ACTION – SUSPENSION OF PUNISHMENT IMPOSED AT SUMMARY TRIAL

If a suspending authority suspends, under subsection 216(2) of the Act, a punishment of detention that was imposed at a summary trial, they shall

(a) ensure that the following persons are notified of the suspension, in writing, as soon as feasible:

(i) the offender,

(ii) the offender’s commanding officer, unless that officer is the suspending authority,

(iii) the officer who presided at the trial, unless that officer is the suspending authority or the offender’s commanding officer, and

(iv) the next superior officer, if any, to whom the suspending authority is responsible in matters of discipline; and

(b) cause the appropriate entries to be made in Part 8 of the original Record of Disciplinary Proceedings.

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

NOTE

A suspending authority who suspends, under subsection 216(2) of the Act, a punishment of detention that was imposed at a summary trial also has an obligation to comply with paragraph 107.14(8).

(C) [1 September 2018]

113.40 – REVOCATION OF SUSPENSION

Subsection 216(2.2) of the Act provides:

“216. (2.2) A suspending authority may — if the reasons described in subsection (2) no longer apply or if the offender’s conduct is inconsistent with the reasons for which the punishment was suspended — revoke the suspension of a punishment and commit the offender or, if the person is not empowered to commit the offender, direct an authority so empowered to do so.”

(C) [1 September 2018]

113.41 – ADMINISTRATIVE ACTION RELATING TO REVOCATION OF SUSPENSION

A suspending authority who revokes the suspension of a punishment under subsection 216(2.2) of the Act shall

(a) ensure that written notice of the revocation is provided as soon as feasible to

(i) if the punishment was imposed at a summary trial, the persons set out in subparagraph 113.39(a), and

(ii) in all other cases, the persons set out in article 113.37 (Persons to Whom Reasons for Suspension are to be Provided – Court Martial or Appeal Court); and

(b) if the punishment was imposed at a summary trial, cause the appropriate entries to be made in Part 8 of the original Record of Disciplinary Proceedings.

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

NOTE

A suspending authority who revokes the suspension of a punishment that was imposed at a summary trial also has an obligation to comply with paragraph 107.14(8).

(C) [1 September 2018]


Section 3 – Review of Suspension and Remission of Punishment

113.42 – REVIEW OF SUSPENSION AND REMISSION OF PUNISHMENT

Section 217 of the Act provides:

“217. (1) If a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority. The suspending authority may, at the time of the review and in accordance with regulations made by the Governor in Council, remit the punishment.

(2) A punishment, except a punishment referred to in subsection (3), that has been suspended shall be deemed to be wholly remitted on the expiration of a period, commencing on the day the suspension was ordered, equal to the term of the punishment less any time during which the offender has been incarcerated following pronouncement of the sentence, unless the punishment has been put into execution prior to the expiration of that period.

(3) A punishment of detention that has been suspended is deemed to be wholly remitted on the expiration of one year commencing on the day the suspension was ordered, unless the punishment has been put into execution prior to the expiration of that period.”

113.43 – CONDITIONS TO REMIT A PUNISHMENT OF IMPRISONMENT OR DETENTION

(1) The Chief of the Defence Staff may, in reviewing the suspension of a punishment under subsection 217(1) of the Act, remit the punishment if

(a) he or she is satisfied that

(i) the conduct of the offender since the punishment was suspended justifies the remission,

(ii) the remission is unlikely to have a detrimental effect on public trust in the administration of military justice, and

(iii) the offender does not pose a significant risk to the safety of the public;

(b) he or she has obtained legal advice from a legal officer in respect of the proposed remission; and

(c) except in the case of a punishment that was imposed at a summary trial, the Director of Military Prosecutions has been advised of the proposed remission.

(2) An officer commanding a command or a formation may, in reviewing the suspension of a punishment under subsection 217(1) of the Act, remit the punishment if

(a) in the case of a punishment of detention, at least 30 days have elapsed since the punishment was suspended;

(b) in the case of a punishment of imprisonment, at least 60 days have elapsed since the punishment was suspended and the punishment stands to be automatically remitted under subsection 217(2) of the Act within the next six months;

(c) the officer is satisfied that the conditions set out in sub-subparagraphs (1)(a)(i) to (iii) are met;

(d) the officer has obtained legal advice from a legal officer in respect of the proposed remission; and

(e) the next superior officer to whom the officer is responsible in matters of discipline and, except in the case of a punishment that was imposed at a summary trial, the Director of Military Prosecutions have been advised of the proposed remission.

(3) A commanding officer may, in reviewing the suspension of a punishment under subsection 217(1) of the Act, remit the punishment if

(a) he or she is the commanding officer of the offender in question;

(b) in the case of a punishment of detention, at least 60 days have elapsed since the punishment was suspended;

(c) in the case of a punishment of imprisonment, at least 90 days have elapsed since the punishment was suspended and the punishment stands to be automatically remitted under subsection 217(2) of the Act within the next six months;

(d) the officer is satisfied that the conditions set out in sub-subparagraphs (1)(a)(i) to (iii) are met;

(e) the officer has obtained legal advice from a legal officer in respect of the proposed remission; and

(f) the next superior officer to whom the officer is responsible in matters of discipline and, except in the case of a punishment that was imposed at a summary trial, the Director of Military Prosecutions have been advised of the proposed remission.

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

113.44 – DECISION NOT TO FOLLOW LEGAL ADVICE

A suspending authority who, in remitting a punishment, decides not to follow the legal advice that they have obtained from a legal officer shall, within 30 days after remitting the punishment, provide written reasons for the decision to the legal officer and the next superior officer, if any, to whom the suspending authority is responsible in matters of discipline.

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

113.45 – ADMINISTRATIVE ACTION RELATING TO REMISSION OF PUNISHMENT

(1) A suspending authority who remits a punishment under subsection 217(1) of the Act shall ensure that the following persons are notified of the remission as soon as feasible, in writing:

(a) the offender;

(b) the offender’s commanding officer, unless that officer is the suspending authority;

(c) the next superior officer, if any, to whom the suspending authority is responsible in matters of discipline;

(d) if the punishment was imposed at a summary trial, the officer who presided at the trial, unless that officer is the suspending authority or will otherwise be notified under this paragraph;

(e) if the punishment was imposed at a court martial or was imposed, affirmed or substituted by the Court Martial Appeal Court or the Supreme Court of Canada,

(i) the offender’s legal counsel,

(ii) the Director of Military Prosecutions,

(iii) the Judge Advocate General,

(iv) the Chief Military Judge, and

(v) if applicable, the Chief Justice of the relevant court of appeal;

(f) if the punishment was suspended by a different suspending authority who will not otherwise be notified under this paragraph, that suspending authority; and

(g) if conditions were imposed on the offender in connection with the suspension, the Provost Marshal.

(2) The Director of Military Prosecutions shall, after being notified of the remission of a punishment under subparagraph (1)(e), inform any victim of the offence to which the punishment relates who has asked to be so informed.

(3) If the remission relates to a punishment that was imposed at a summary trial, the suspending authority shall cause the appropriate entries to be made in Part 8 of the original Record of Disciplinary Proceedings.

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

NOTE

A suspending authority who remits, under subsection 217(1) of the Act, a punishment of detention that was imposed at a summary trial also has an obligation to comply with paragraph 107.14(8).

(C) [1 September 2018]


Section 4 – Intermittent Sentences

113.46 – POWER TO MAKE INTERMITTENT SENTENCE ORDER

Subsection 148(1) of the Act provides:

“148. (1) A service tribunal that sentences an offender to imprisonment or detention for a period of 14 days or less may, on application of the offender and having regard to the offender’s age and character, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

(a) that the sentence be served intermittently at the times specified in the order; and

(b) that the offender comply with any conditions prescribed in the order when the offender is not in confinement during the period during which the sentence is served.”

(C) [1 September 2018]

113.47 – FORM OF INTERMITTENT SENTENCE ORDER

An intermittent sentence order may be in the following form:

INTERMITTENT SENTENCE ORDER

(Section 148 of the National Defence Act)

Whereas on (day, month, year) at (place), (service number and rank (if applicable) and full name of the offender) (“the offender”) was convicted of the following offence(s): (state the offence(s));

Whereas the offender has been sentenced to (imprisonment or detention) for a period of (number not exceeding 14) days;

And whereas it is appropriate, in the circumstances, for the offender to serve the sentence intermittently;

It is ordered that the sentence be served intermittently at (place of confinement) at the following times: (state the times);

And it is further ordered that the offender must comply with the following condition(s) when he or she is not in confinement during the period during which the sentence is served: (list any condition(s); if none, delete this paragraph).

As a matter of information:

Breach of any conditions of this order may, following a hearing, result in the revocation of this order and the imposition of an obligation to serve the sentence on consecutive days. (Delete this sentence if there are no conditions)

Failure to comply with conditions, without lawful excuse, is an offence under section 101.1 of the National Defence Act. (Delete this sentence if there are no conditions)

The offender may apply, under subsection 148(2) of the National Defence Act, to serve the sentence on consecutive days.

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

Signature of commanding officer or military judge making the order

(Rank and name of commanding officer or military judge making the order)

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

NOTES

(A) Consideration should be given to including the following conditions in an intermittent sentence order:

(i) to keep the peace and be of good behaviour; and

(ii) to attend any hearing under subsection 148(4) of the Act when ordered to so by the offender’s commanding officer or a military judge.

(B) A commanding officer who makes an intermittent sentence order has an obligation to comply with paragraph 107.14(5.1).

(C) [1 September 2018]

113.48 – OBLIGATIONS OF SERVICE TRIBUNAL

(1) A service tribunal that makes an intermittent sentence order shall

(a) cause a copy of the order to be given to the offender and, if the service tribunal is a court martial, the Director of Military Prosecutions;

(b) if there are conditions prescribed in the order, explain them to the offender, together with the substance of section 101.1 and subsections 148(4) and (5) of the Act;

(c) explain to the offender that they may make an application under subsection 148(2) of the Act; and

(d) take reasonable steps to ensure that the offender understands the order and the explanations given.

(2) For greater certainty, failure to comply with paragraph (1) does not affect the validity of the intermittent sentence order.

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

Sub-Section 1 – Application to Serve Sentence on Consecutive Days

113.49 – APPLICATION TO SERVE SENTENCE ON CONSECUTIVE DAYS

Subsection 148(2) of the Act provides:

“148. (2) An offender who is ordered to serve a sentence intermittently may apply to have the sentence served on consecutive days by applying

(a) to their commanding officer, in the case of a sentence imposed by summary trial; or

(b) to a military judge after giving notice to the Director of Military Prosecutions, in the case of a sentence imposed by a court martial.”

(C) [1 September 2018]

113.50 – NOTICE OF APPLICATION

(1) An offender who is subject to an intermittent sentence order and who wishes to apply, under subsection 148(2) of the Act, to serve their sentence on consecutive days shall provide a notice of application to

(a) their commanding officer, if the sentence was imposed at a summary trial; and

(b) the Chief Military Judge, if the sentence was imposed by a court martial.

(2) The notice of application shall include

(a) a detailed description of the circumstances supporting the application;

(b) a copy of the intermittent sentence order, together with a copy of any applicable amending order (see article 113.68 – Obligations at Conclusion of Hearing);

(c) a description of any evidence that the offender intends to rely on at the hearing referred to in article 113.54 (Hearing Procedure);

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

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

(3) If the offender provides the Chief Military Judge with a notice of application under paragraph (1), the offender shall provide a copy of the notice to their commanding officer and the Director of Military Prosecutions as soon as feasible.

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

113.51 – ASSISTANCE TO OFFENDER

(1) The commanding officer of an offender who is subject to an intermittent sentence order that was made at a summary trial shall, as soon as feasible after the earlier of the following events, appoint an officer — or, in exceptional circumstances, a non-commissioned member above the rank of sergeant — to assist the offender:

(a) the offender requests assistance in preparing a notice of application referred to in paragraph 113.50(1) in order to serve their sentence on consecutive days; or

(b) the offender provides the commanding officer with a notice of application under paragraph 113.50(1).

(2) The commanding officer shall appoint a particular person requested by the offender if the exigencies of the service permit and the person agrees to be appointed.

(3) The officer or non-commissioned member who is appointed shall, to the extent desired by the offender,

(a) assist in the preparation of the notice of application and advise the offender regarding witnesses, evidence or any other matter relating to the hearing before the commanding officer; and

(b) assist the offender during the hearing, including speaking on their behalf.

(4) If the officer or non-commissioned member who has been appointed is unable or unwilling to continue to assist the offender, the commanding officer shall appoint a substitute as soon as feasible.

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

113.52 – REPRESENTATION OF OFFENDER

(1) Every offender who is subject to an intermittent sentence order that was made by a court martial has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application under subsection 148(2) of the Act to serve the sentence on consecutive days.

(2) An offender who wishes to be provided with legal counsel by the Director of Defence Counsel Services in respect of an application referred to in paragraph (1) shall notify their commanding officer and may specify a preference for a particular legal officer who assists the Director.

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

(4) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (3), assign legal counsel to the offender and attempt to give effect to any specified preference for a particular legal officer.

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

113.53 – NOTICE OF HEARING

(1) A commanding officer shall, as soon as feasible after receiving a notice of application under paragraph 113.50(1), cause a notice of hearing to be delivered to the offender.

(2) The Chief Military Judge shall, as soon as feasible after receiving a notice of application under paragraph 113.50(1), ensure that a notice of hearing is provided to the offender, the offender’s commanding officer and the Director of Military Prosecutions.

(3) A notice of hearing shall include:

(a) the date, time and place of the hearing referred to in article 113.54 (Hearing Procedure); and

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

(4) The offender’s commanding officer shall, if the Chief Military Judge requests it, cause a notice of hearing that is referred to in paragraph (2) to be delivered to the offender as soon as feasible.

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

113.54 – HEARING PROCEDURE

(1) The following definitions apply in this article.

“hearing” means a hearing before a commanding officer or military judge to consider an application made under subsection 148(2) of the Act. (audience)

“offender” includes the offender’s legal counsel or the officer or non-commissioned member appointed to assist the offender, as the case may be. (contrevenant)

(2) At the beginning of the hearing,

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

(b) the following persons shall take their places:

(i) the offender,

(ii) in the case of a hearing before a military judge, the Director of Military Prosecutions, and

(iii) the officer presiding at the hearing.

(3) In the case of a hearing before a military judge, the judge shall identify themselves and ask if the offender or the Director of Military Prosecutions objects to the application being heard by the judge. Any objection shall be disposed of in accordance with article 112.14 (Objections to the Constitution of the Court Martial), with any necessary changes.

(4) The officer presiding at the hearing shall

(a) take the oath prescribed in article 108.27 (Oath to be Taken by Officer Authorized to Preside at Summary Trial) or article 112.16 (Oath to be Taken by Judge Presiding at Court Martial), as the case may be; and

(b) if they are a military judge,

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

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

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

(5) The offender may make a statement that is pertinent to the application, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions.

(6) The offender may present evidence, including sworn witness testimony, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions.

(7) The officer presiding at the hearing may call witnesses at any time if the officer wishes to hear further evidence.

(8) The offender may make representations, followed, in the case of a hearing before a military judge, by the Director of Military Prosecutions. The offender may reply to any representations made by the Director.

(9) The officer presiding at the hearing shall announce their decision and, after complying with article 113.56 (Obligations at Conclusion of Hearing), terminate the hearing.

(10) If a procedural matter is not provided for in this article,

(a) the provisions of Chapter 108 apply, with any necessary changes, in the case of a hearing before a commanding officer; and

(b) the provisions of Chapter 112 apply, with any necessary changes, in the case of a hearing before a military judge.

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

113.55 – APPEARANCE BY TECHNOLOGICAL MEANS

(1) The commanding officer or military judge presiding at a hearing referred to in article 113.54 (Hearing Procedure) may, with the consent of the offender, permit any person to appear at the hearing by any means that allows the hearing participants, including witnesses, to engage in simultaneous visual and oral communication, so long as the offender is given the opportunity to communicate privately with their legal counsel or the officer or non-commissioned member who has been appointed to assist the offender, as the case may be.

(2) In the case of a hearing before a military judge, the consent of the Director of Military Prosecutions is also required.

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

113.56 – OBLIGATIONS AT CONCLUSION OF HEARING

(1) If the commanding officer or military judge presiding at a hearing referred to in article 113.54 (Hearing Procedure) approves the offender’s application to serve their sentence on consecutive days, the officer or judge shall

(a) revoke the intermittent sentence order and order that the offender serve the sentence on consecutive days;

(b) commit the offender or, if the officer or judge is not empowered to commit the offender, direct an authority so empowered to do so (see articles 114.02 – Warrant for Committal and 114.04 – Form of Committal Order); and

(c) in the case of a hearing before a commanding officer, inform the Provost Marshal.

(2) If the commanding officer or military judge refuses the offender’s application, the officer or judge shall remind the offender that they remain bound by the intermittent sentence order, as amended by any amending order.

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

NOTE

A commanding officer who orders that the offender serve their sentence on consecutive days also has an obligation to comply with paragraph 107.14(5.2).

(C) [1 September 2018]

113.57 – RETURN OF EXHIBITS – HEARING BEFORE COMMANDING OFFICER

If exhibits were submitted at a hearing referred to in article 113.54 (Hearing Procedure) before a commanding officer, the commanding officer of the unit, base or element at which the exhibits are detained shall ensure that, after the termination of the hearing and to the extent possible, each exhibit is returned to the person apparently entitled to it unless it is required for the purposes of an investigation or another proceeding.

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


Sub-Section 2 – Breach of Condition of Intermittent Sentence Order

113.58 – APPLICATION – BREACH OF CONDITION

Subsection 148(4) of the Act provides:

“148. (4) On application by a representative of the Canadian Forces who is a member of a class designated for that purpose by regulations made by the Governor in Council, a determination of whether an offender has breached a condition imposed under paragraph (1)(b) may be made by

(a) the offender’s commanding officer, in the case of a condition imposed by a summary trial; or

(b) a military judge, in the case of a condition imposed by a court martial.”

(C) [1 September 2018]

113.59 – CLASSES OF CANADIAN FORCES REPRESENTATIVES

For the purposes of subsection 148(4) of the Act, the classes of representatives of the Canadian Forces who may apply for a determination of whether an offender has breached a condition of an intermittent sentence order are

(a) officers, if the condition was imposed at a summary trial; and

(b) the Director of Military Prosecutions and the legal officers who assist the Director, if the condition was imposed by a court martial.

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

NOTE

In the case of a condition imposed at a summary trial, the representative of the Canadian Forces should obtain legal advice from a legal officer before making an application for a determination of whether the offender has breached the condition.

(C) [1 September 2018]

113.60 – NOTICE OF APPLICATION

(1) A representative of the Canadian Forces who wishes to apply, under subsection 148(4) of the Act, for a determination of whether an offender has breached a condition of an intermittent sentence order shall provide a notice of application to

(a) the offender’s commanding officer, if the condition was imposed at a summary trial; or

(b) the Chief Military Judge, if the condition was imposed by a court martial.

(2) The notice of application shall include

(a) a detailed description of the alleged breach;

(b) a copy of the intermittent sentence order, together with a copy of any applicable amending order (see article 113.68 – Obligations at Conclusion of Hearing);

(c) a description of the evidence that the representative of the Canadian Forces intends to rely on at the hearing referred to in article 113.65 (Hearing Procedure);

(d) the names of any witnesses that the representative of the Canadian Forces intends to call at the hearing;

(e) the relief sought, including any proposed changes to the conditions of the intermittent sentence order; and

(f) an estimate of the length of time required for the representative of the Canadian Forces to present their application.

(3) The representative of the Canadian Forces shall, as soon as feasible after complying with paragraph (1), ensure that a copy of the notice of application is provided to

(a) the offender; and

(b) the offender’s commanding officer, if the condition that is alleged to have been breached was imposed by a court martial.

(4) If the condition that is alleged to have been breached was imposed by a court martial, the offender’s commanding officer shall, if the representative of the Canadian Forces requests it, cause the offender’s copy of the notice of application to be delivered to the offender as soon as feasible.

(5) A person who delivers the copy of a notice of application to the offender under paragraph (4) shall complete a confirmation of delivery in the following form:

CONFIRMATION OF DELIVERY

At (time) hours on (day, month, year), I personally delivered to (service number and rank (if applicable) and full name of the offender) a copy of a notice of application relating to the alleged breach of a condition of an intermittent sentence order.

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

Signature of the person who made the delivery

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

(6) The offender’s commanding officer shall ensure that the completed confirmation of delivery is forwarded to the representative of the Canadian Forces as soon as feasible.

(7) If the representative of the Canadian Forces provides a notice of application to the Chief Military Judge and does not make a request under paragraph (4), the representative shall, as soon as feasible after the offender receives their copy of the notice, inform the offender’s commanding officer that it has been receive.

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

113.61 – PROVISION OF INFORMATION – APPLICATION TO COMMANDING OFFICER

(1) A representative of the Canadian Forces who has provided an offender’s commanding officer with a notice of application under paragraph 113.60(1) shall ensure that the following information is disclosed to the offender:

(a) information that the representative intends to rely on as evidence at the hearing before the commanding officer; and

(b) information that tends to show that the offender did not breach a condition of the intermittent sentence order.

(2) The information shall be disclosed in sufficient time to permit the offender to prepare for the hearing.

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

113.62 – ASSISTANCE TO OFFENDER

(1) A commanding officer who receives a notice of application under paragraph 113.60(1) shall, as soon as feasible, appoint an officer — or, in exceptional circumstances, a non-commissioned member above the rank of sergeant — to assist the offender.

(2) The commanding officer shall appoint a particular person requested by the offender if the exigencies of the service permit and the person agrees to be appointed.

(3) The officer or non-commissioned member who is appointed shall, to the extent desired by the offender,

(a) assist in the preparation of the offender’s case and advise the offender regarding witnesses, evidence or any other matter relating to the hearing before the commanding officer; and

(b) assist the offender during the hearing, including speaking on their behalf.

(4) If the officer or non-commissioned member who has been appointed is unable or unwilling to continue to assist the offender, the commanding officer shall appoint a substitute as soon as feasible.

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

113.63 – REPRESENTATION OF OFFENDER

(1) Every offender who is subject to an intermittent sentence order that was made by a court martial has the right to be represented by a barrister or advocate with standing at the bar of a province in respect of an application under subsection 148(4) of the Act for a determination of whether the offender has breached a condition of the order.

(2) A commanding officer who receives a copy of a notice of application under paragraph 113.60(3) shall, as soon as feasible after the offender has received a copy of the notice, ask them whether they wish to be provided with legal counsel by the Director of Defence Counsel Services and, if they do, whether they have a preference for a particular legal officer who assists the Director.

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

(4) The Director of Defence Counsel Services shall, as soon as feasible after being advised under paragraph (3), assign legal counsel to the offender and attempt to give effect to any specified preference for a particular legal officer.

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

113.64 – NOTICE OF HEARING

(1) A commanding officer shall, as soon as feasible after receiving a notice of application under paragraph 113.60(1), issue a notice of hearing and cause it to be delivered to the representative of the Canadian Forces and the offender.

(2) If a representative of the Canadian Forces has provided the Chief Military Judge with a notice of application under paragraph 113.60(1), the Chief Military Judge shall, as soon as feasible after the representative confirms that the offender has received a copy of the notice, cause a notice of hearing to be delivered to the representative, the offender and the offender’s commanding officer.

(3) A notice of hearing shall include

(a) the date, time and place of the hearing referred to in article 113.65 (Hearing Procedure); and

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

(4) The offender’s commanding officer shall, if the Chief Military Judge requests it, cause the notice of hearing that is to be delivered to the offender under paragraph (2) to be delivered to them as soon as feasible.

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

CONFIRMATION OF DELIVERY

At (time) hours on (day, month, year), I personally delivered to (service number and rank (if applicable) and full name of the offender) a notice of a hearing relating to the alleged breach of a condition of an intermittent sentence order.

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

Signature of the person who made the delivery

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

(6) The offender’s commanding officer shall ensure that the completed confirmation of delivery is forwarded to the Court Martial Administrator as soon as feasible.

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

113.65 – HEARING PROCEDURE

(1) The following definitions apply in this article.

“hearing” means a hearing before a commanding officer or military judge to consider an application made under subsection 148(4) of the Act. (audience)

“offender” includes the offender’s legal counsel or the officer or non-commissioned member appointed to assist the offender, as the case may be. (contrevenant)

(2) At the beginning of the hearing,

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

(b) the following persons shall take their places:

(i) the offender,

(ii) the representative of the Canadian Forces, and

(iii) the officer presiding at the hearing.

(3) In the case of a hearing before a military judge, the judge shall identify themselves and ask if the offender or the representative of the Canadian Forces objects to the application being heard by the judge. Any objection shall be disposed of in accordance with article 112.14 (Objections to the Constitution of the Court Martial), with any necessary changes.

(4) The officer presiding at the hearing shall

(a) take the oath prescribed in article 108.27 (Oath to be Taken by Officer Authorized to Preside at Summary Trial) or article 112.16 (Oath to be Taken by Judge Presiding at Court Martial), as the case may be; and

(b) if they are a military judge,

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

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

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

(5) The representative of the Canadian Forces, followed by the offender, may make a statement that is pertinent to the application.

(6) The representative of the Canadian Forces, followed by the offender, may present evidence, including sworn witness testimony.

(7) The officer presiding at the hearing may call witnesses at any time if the officer wishes to hear further evidence.

(8) The representative of the Canadian Forces, followed by the offender, may make representations. The representative of the Canadian Forces may reply to any representations made by the offender.

(9) The officer presiding at the hearing shall

(a) announce their determination as to whether there has been a breach of the conditions of the intermittent sentence order;

(b) if applicable, take one of the actions set out in subsection 148(5) of the Act; and

(c) after complying with the applicable obligations in article 113.68 (Obligations at Conclusion of Hearing), terminate the hearing.

(10) If a procedural matter is not provided for in this article,

(a) the provisions of Chapter 108 apply, with any necessary changes, in the case of a hearing before a commanding officer; and

(b) the provisions of Chapter 112 apply, with any necessary changes, in the case of a hearing before a military judge.

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

NOTE

A commanding officer should obtain legal advice from a legal officer before making a determination under subsection 148(4) of the Act.

(C) [1 September 2018]

113.66 – APPEARANCE BY TECHNOLOGICAL MEANS

The commanding officer or military judge presiding at a hearing referred to in article 113.65 (Hearing Procedure) may, with the consent of the offender and the representative of the Canadian Forces, permit any person to appear at the hearing by any means that allows the hearing participants, including witnesses, to engage in simultaneous visual and oral communication, so long as the offender is given the opportunity to communicate privately with their legal counsel or the officer or non-commissioned member who has been appointed to assist the offender, as the case may be.

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

113.67 – CONSEQUENCES OF BREACH OF CONDITION

Subsection 148(5) of the Act provides:

“148. (5) If a person referred to in paragraph (4)(a) or (b) determines, after giving the offender and the applicant an opportunity to make representations, that the offender has breached a condition, the person may

(a) revoke the order made under subsection (1) and order that the offender serve the sentence on consecutive days; or

(b) vary any conditions imposed under paragraph (1)(b) and substitute or add other conditions as they see fit.”

(C) [1 September 2018]

113.68 – OBLIGATIONS AT CONCLUSION OF HEARING

(1) A commanding officer or military judge presiding at a hearing referred to in article 113.65 (Hearing Procedure) who determines that the offender has breached a condition of the intermittent sentence order shall, if the officer or judge revokes the order and orders that the offender serve the sentence on consecutive days,

(a) commit the offender or, if the officer or judge is not empowered to commit the offender, direct an authority so empowered to do so (see articles 114.02 – Warrant for Committal and 114.04 – Form of Committal Order); and

(b) in the case of a hearing before a commanding officer, inform the Provost Marshal.

(2) If, after determining that the offender has breached a condition of the intermittent sentence order, the commanding officer or military judge varies a condition of the order or adds or substitutes other conditions, the officer or judge shall

(a) make an amending order to give effect to the decision;

(b) cause a copy of the amending order to be given to the offender and either

(i) the Provost Marshal, in the case of a hearing before a commanding officer, or

(ii) the Director of Military Prosecutions, in the case of a hearing before a military judge; and

(c) explain the changes to the conditions to the offender and take reasonable steps to ensure that the offender understands the explanation given.

(3) An amending order may be in the following form:

AMENDING ORDER

(Subsection 148(5) of the National Defence Act)

Whereas on (day, month, year) at (place), (service number and rank (if applicable) and full name of the offender) (the “offender”) was sentenced to (imprisonment or detention) for a period of (number not exceeding 14) days;

Whereas the service tribunal that sentenced the offender ordered that the sentence be served intermittently;

And whereas the offender has breached the following condition(s) of the intermittent sentence order: (state condition(s));

(Delete any of the following three paragraphs that does not apply and add further paragraphs if necessary)

It is ordered that (identify existing condition) is varied so that it now reads: (state condition, as varied).

It is ordered that the following condition (state new condition) is substituted for (identify existing condition).

It is ordered that the following condition is added to the conditions of the intermittent sentence order: (state new condition).

As a matter of information, the complete list of conditions that the offender must now comply with is as follows:

(Add paragraphs indicating any conditions of the intermittent sentence order that are unaffected by this amending order as well as the new or varied condition(s))

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

Signature of commanding officer or military judge making the order

(Rank and name of commanding officer or military judge making the order)

(4) If the commanding officer or military judge determines that the offender has not breached a condition of the intermittent sentence order or decides not to take any action in response to a breach, the officer or judge shall remind the offender that they remain bound by the order, as amended by any amending order.

(5) For greater certainty, failure to comply with subparagraph (2)(b) or (c) does not affect the validity of the amending order.

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

NOTES

(A) A commanding officer who revokes an intermittent sentence order and orders that the offender serve the sentence on consecutive days also has an obligation to comply with paragraph 107.14(5.2).

(B) A commanding officer who makes an amending order under subparagraph 113.68(2)(a) also has an obligation to comply with paragraph 107.14(5.1).

(C) [1 September 2018]

113.69 – RETURN OF EXHIBITS – HEARING BEFORE COMMANDING OFFICER

If exhibits were submitted at a hearing referred to in article 113.65 (Hearing Procedure) before a commanding officer, the commanding officer of the unit, base or element at which the exhibits are detained shall ensure that, after the termination of the hearing and to the extent possible, each exhibit is returned to the person apparently entitled to it unless it is required for the purposes of an investigation or another proceeding.

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

[113.70 to 113.99: not allocated]

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