ARCHIVED - QR&O: Volume II - Chapter 114 Imprisonment and Detention (Historical version: 1 September 1999 to 31 August 2018)

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Amendment List:

History:

Section 1 – Suspension of Imprisonment and Detention

114.01 – APPLICATION

This chapter applies in respect of punishments of imprisonment and detention imposed by service tribunals.

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

114.02 – AUTHORITY TO SUSPEND

(1) Subsection 216(1) of the National Defence Act provides:

(2) In respect of punishments imposed at courts martial, the Chief of the Defence Staff and an officer commanding a command may act as suspending authorities for the purposes of sections 216, 217 and 218 of the National Defence Act.

(3) In respect of punishments imposed at summary trial, the following authorities may act as suspending authorities for the purposes of sections 216, 217 and 218 of the National Defence Act:

1. the Chief of the Defence Staff;
2. an officer commanding a command;
3. an officer commanding a formation;
4. subject to paragraph (4), a commanding officer; and
5. an officer acting as a review authority under article 108.45 (Review of Finding or Punishment of Summary Trial).

(4) A commanding officer may only act as a suspending authority in respect of detention that has been imposed at a summary trial when the offender is under the commanding officer's command.

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

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Section 2 – Committal

114.03 – COMMITTING AUTHORITIES

(1) Subsection 219(1) of the National Defence Act provides:

(2) The following authorities may act as committing authorities for the purposes of sections 219 and 220 of the National Defence Act:

1. the Minister;
2. the Chief of the Defence Staff;
3. an officer commanding a command;
4. an officer commanding a formation;
5. a commanding officer; and
6. a military judge.

(M) (1 September 1999)

114.04 – AUTHORITY FOR COMMITTAL AND CUSTODY PENDING COMMITTAL

(1) Subsections 219(2) and (4) of the National Defence Act provide:

(2) A Committal Order should be in the following form:

COMMITTAL ORDER

TO: (title of officer or official and name of institution)

WHEREAS (service number and rank (if applicable), surname and given names) of the Canadian Forces was convicted by (specify type of service tribunal) of (an) offence(s) under section(s) _____ of the National Defence Act and was on the _______ day of (month), (year) sentenced to undergo(imprisonment or detention) for a term of _____

Now, therefore, I, having been designated under and by virtue of the National Defence Act as a committing authority, commit the offender to undergo (imprisonment or detention) for the term of (number of days) computed from (date)

And, in pursuance of the National Defence Act and regulations made thereunder, I direct and require you to receive him into your custody and detain him accordingly, and for so doing this shall be sufficient warrant.

(signature, rank and appointment)

Dated this _____ day of (month), (year).

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CERTIFICATE OF MEDICAL FITNESS

I certify that (service number and rank (if applicable), surname and given names)

• is (fit)
• (fit subject to (specify limitations))
• (unfit by reason of (specify reasons))

to undergo (imprisonment or detention)

(date) medical officer)

(3) Where an offender is also under a sentence of incarceration which has been suspended and has not expired, an additional recital in the following form should be inserted in the committal order:

AND WHEREAS the offender was under a sentence of (imprisonment or detention) for (term) awarded (date of award) and suspended under section 215 or 216 of the National Defence Act on (date suspended sentence ceased to run)

_____ *which sentence has been (is) ordered to be put into execution;

* Delete if not so ordered.

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

NOTES

(A) The committal order should be addressed to the warden in charge of the penitentiary or civil prison in which the offender is to be incarcerated or to the officer or non-commissioned member in charge of a service prison or detention barrack.

(B) Where a punishment of imprisonment or detention cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the committal order should specify the date from which the term is to be computed as being the date upon which the offender is received into the penitentiary, civil prison, service prison or detention barrack (see subsection 204(3) of the National Defence Act).

(C) Where an offender is already under a sentence involving incarceration which has been suspended and has not expired and a new award also involves incarceration, section 149 of the National Defence Act provides that the punishments shall be served concurrently, with the punishment highest in the scale of punishments being served first (see article 104.16 – Incarceration Under More than One Sentence). Accordingly, the committal order must be completed carefully to ensure that the sentence the offender is being committed to serve is apparent on the face of the order (although the time served will count against both sentences). This will vary depending upon whether the suspended sentence is ordered to be put into execution, whether both sentences involve the same type of incarceration; e.g., imprisonment or detention, and which term has the longest to run. If no order is made that the suspended sentence is to be put into execution, the offender should be committed only for the term of the new award. If, however, an order is made to put the suspended sentence into execution, the offender should be committed to undergo the sentence having the longest time to run.

(C) (1 September 1999)

114.05 – COMMITTAL TO PENITENTIARIES

(1) Subsections 220(1) and (2) of the National Defence Act provide:

(2) Subject to paragraph (3), where an offender has been sentenced outside of Canada to undergo imprisonment for life or for two years or more, the committing authority may order that the offender be committed to a service prison, there to undergo such part of the punishment not exceeding two years as the committing authority may order.

(3) Where an offender, who is subject to the Code of Service Discipline under subsection 61(1) of the National Defence Act, has been sentenced outside of Canada to undergo imprisonment for life or for two years or more, the committing authority may, on the authority of the Chief of the Defence Staff, order that the offender be committed to a service prison, there to undergo all or such part of the punishment not exceeding two years, as the Chief of the Defence Staff may order.

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

114.06 – COMMITTAL TO CIVIL PRISONS

(1) Subsection 220(3) of the National Defence Act provides:

(2) Subject to paragraph (3), where the exigencies of the service make it desirable to do so, a committing authority may order that a service prisoner be committed to a service prison or detention barrack, there to undergo the punishment, or such part of the punishment as the committing authority may order.

(3) Where an offender who is subject to the Code of Service Discipline under subsection 61(1) of the National Defence Act is sentenced outside of Canada to undergo imprisonment for less than two years, the committing authority may, on the authority of the Chief of the Defence Staff, order that the offender be committed to a service prison or detention barrack, there to undergo all or such part of the punishment, as the Chief of the Defence Staff may order.

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

114.07 – COMMITTAL TO DETENTION BARRACK

Subsection 220(4) of the National Defence Act provides:

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

114.08 – TRANSFER TO A NEW PLACE OF INCARCERATION

(1) Subsections 219(3) and (4) of the National Defence Act provide:

(2) A Transfer of Custody Warrant or Temporary Removal From Custody Order should be in the following form:

TRANSFER OF CUSTODY WARRANT
OR
TEMPORARY REMOVAL FROM CUSTODY ORDER

TO: (title of officer or official and name of the institution)

WHEREAS (service number and rank (if applicable), surname and given names) of (unit), Canadian Forces, is now in your custody undergoing a sentence of (imprisonment or detention)

Now, therefore I, being a committing authority under the National Defence Act, order you to deliver the above-named prisoner to the bearer of this order, and the bearer, as well as all others into whose custody the prisoner may be transferred, shall keep the prisoner in custody and:

Use (a) for transfer of custody

1. bring the prisoner to (new place of incarceration)

there to undergo the remainder of the sentence, and for so doing this shall be your sufficient authority.

OR

Use (b) for temporary removal from custody.

Strike out (a) or (b)

2. bring the prisoner to (place)

there to (state purpose for which prisoner required) and then return the prisoner to your custody at the institution first above-named, and for so doing this shall be your sufficient authority.

(signature, rank and appointment)

Dated this _____ day of (month), (year) .

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

114.09 – TEMPORARY REMOVAL FROM INCARCERATION

Section 221 of the National Defence Act provides:

(C) (1 September 1999)

114.10 – ORDER FOR DISCHARGE FROM CUSTODY

An Order for Discharge from Custody should be in the following form:

ORDER FOR DISCHARGE FROM CUSTODY

TO: (title of officer or official and name of institution)

WHEREAS (service number and rank (if applicable), surname and given names) of (unit), Canadian Forces, is now in your custody undergoing a sentence of (imprisonment or detention)

Now, therefore I, being a committing authority under the National Defence Act, order you to discharge that person from custody and for so doing this shall be your sufficient authority.

(signature, rank and appointment)

Dated this _____ day of (month), (year).

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

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Section 3 – Service Prisons and Detention Barracks

114.11 – DESIGNATION OF SERVICE PRISONS AND DETENTION BARRACKS

(1) Subsection 205(1) of the National Defence Act provides:

(2) Places designated as service prisons and detention barracks pursuant to subsection 205(1) of the National Defence Act shall from time to time be published in service orders.

(3) A committing authority may commit a service detainee to a unit detention room for a period not in excess of 14 days, and for that purpose, the unit detention room shall be a detention barrack.

(M) (1 September 1999)

NOTES

(A) Where a unit detention room becomes a detention barrack in accordance with paragraph (3) of this article, the Regulations for Service Prisons and Detention Barracks apply (see QR&O Volume IV, Appendix 1.4).

(B) A service detainee sentenced to serve more than 14 days shall be committed to a detention barrack as designated by the Minister of National Defence.

(C) (1 September 1999)

(114.12 TO 114.99 INCLUSIVE: NOT ALLOCATED)