ARCHIVED - QR&O: Volume II - Chapter 119 Mental Disorder (Historical Version: 1 September 1999 to 4 June 2008)

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

The Volume II Chapter 119: Mental Disorder replaces this content.

Section 1 – General

119.01 – PURPOSE

This chapter supplements Division 7 of the Code of Service Discipline.

(M) (1 September 1999)

119.02 – DEFINITIONS

For the purposes of this chapter,

" appropriate province"" (province concernée)

means

1. in respect of a court martial held in Canada, the province in which it is held, or
2. in respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person;

" assessment" (évaluation)

means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person;

" medical practitioner" (médecin)

means a person who is entitled to practise medicine by the laws of a province;

" mental disorder" (troubles mentaux)

means a disease of the mind;

" Review Board" (commission d'examen)

means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code;

" unfit to stand trial" (inaptitude à subir son procès)

means unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct legal counsel to do so, and in particular, unable on account of mental disorder to

1. understand the nature or object of the proceedings,
2. understand the possible consequences of the proceedings, or
3. communicate with legal counsel.

(M) (1 September 1999)

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Section 2 – Fitness to Stand Trial

119.03 – PRESUMPTION OF FITNESS TO STAND TRIAL

Subsection 198(1) of the National Defence Act provides:

(C)

119.04 – DIRECTION THAT ISSUE OF FITNESS BE TRIED

Subsection 198(2) of the National Defence Act provides:

(C)

119.05 – POWER TO MAKE ASSESSMENT ORDER – DETERMINATION OF FITNESS TO STAND TRIAL

(1) Subsection 198(4) of the National Defence Act provides:

(2) A court martial may make an assessment order under paragraph (1) at any stage of the proceedings against the accused on its own motion or on application of the accused or the prosecutor.

(M) (1 September 1999)

NOTE

The regulations respecting assessment orders are prescribed in Section 7 (Assessment Orders and Assessment Reports) of this chapter.

(C) (1 September 1999)

119.06 – ABSENCE OF THE ACCUSED

(1) The judge presiding at a court martial may order that the accused be kept out of court during the trial of any issue as to whether the accused is unfit to stand trial where satisfied that the presence in court of the accused may have an adverse effect on the mental condition of the accused.

(2) Where the issue of the fitness of the accused to stand trial is to be raised pursuant to subparagraph 5(b) or (e) of article 112.05 (Procedure to be Followed at a Court Martial), the presiding judge may, in addition to any other order under paragraph (1), order that the accused be kept out of any court martial proceedings prior to the trial of the issue of the fitness of the accused to stand trial.

(M) (1 September 1999)

119.07 – REPRESENTATION BY LEGAL COUNSEL

Where a court martial has reasonable grounds to believe that an accused person who is not represented by legal counsel is unfit to stand trial, the court martial shall direct that the commanding officer of the accused person ensure that the accused person is represented by legal counsel.

(M) (1 September 1999)

119.08 – BURDEN OF PROOF

Subsection 198(3) of the National Defence Act provides:

(C)

119.09 – POSTPONEMENT OF TRIAL OF ISSUE OF FITNESS TO STAND TRIAL

Section 199 of the National Defence Act provides:

(C)

119.10 – PROCEDURE FOR TRIAL OF THE ISSUE OF FITNESS TO STAND TRIAL

(1) The issue of whether the accused person is unfit to stand trial shall be determined in a voir dire in accordance with this article, except where it is raised as a plea in bar of trial under subparagraph (1)(d) of article 112.24 (Pleas in Bar of Trial) (see subparagraph 5(b) of article 112.05 – Procedure to be Followed at a Court Martial). (1 September 1999)

(2) The applicant, followed by the other party, may make any statement that is pertinent to the issue and witnesses may be called first by the applicant, and then by the other party and by the court if it desires to hear any further evidence.

(3) Following any action under paragraph (2), the applicant, then the other party, may address the court martial, and the applicant shall have the right to address the court in reply to any address made by the other party.

(4) The court martial shall

1. close to determine whether or not the accused is unfit to stand trial, and
2. reopen and announce its decision.

(5) The court martial may at any time before announcing its decision:

1. re-call and question any witness; and
2. call, cause to be sworn and question any further witnesses.

(6) Where the court martial calls or re-calls any witness after a closing address, it shall give the applicant and the other party the right to make an address in respect of the evidence adduced.

(M) (1 September 1999)

119.11 – WHERE ACCUSED IS FOUND FIT TO STAND TRIAL

Subsection 200(1) of the National Defence Act provides:

(C)

119.12 – WHERE ACCUSED IS FOUND UNFIT TO STAND TRIAL

Subsection 200(2) of the National Defence Act provides:

(C)

NOTE

The regulations respecting disposition hearings are prescribed in Section 6 (Dispositions) of this chapter.

(C)

119.13 – POWER TO MAKE DISPOSITION –ACCUSED FOUND UNFIT TO STAND TRIAL

Section 201 of the National Defence Act provides:

(C) (1 September 1999)

119.14 – TREATMENT DISPOSITION WHERE NO OTHER DISPOSITION MADE

(1) Section 202 of the National Defence Act provides:

(1 September 1999)

(2) For the purposes of subsections 202(5) and 202(6) of the National Defence Act,

" electro-convulsive therapy" (sismothérapie)

means a procedure for the treatment of certain mental disorders that induces, by electrical stimulation of the brain, a series of generalized convulsions;

" psychosurgery" (psychochirurgie)

means any procedure that by direct or indirect access to the brain removes, destroys or interrupts the continuity of histologically normal brain tissue, or inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat intractable physical pain, organic brain conditions, or epilepsy, where any of those conditions is clearly demonstrable.

(M) (1 September 1999)

119.15 – POWER TO MAKE ASSESSMENT ORDER – DETERMINATION OF APPROPRIATE DISPOSITION

(1) Subsection 200(3) of the National Defence Act provides:

(2) A court may make an assessment order under paragraph (1) at any stage of the proceedings against the accused on its own motion, or on application of the accused or the prosecutor.

(M)

NOTE

The regulations respecting assessment orders are prescribed in Section 7 (Assessment Orders and Assessment Reports) of this chapter.

(C)

119.16 – SUBSEQUENT PROCEEDINGS

Subsection 198(5) of the National Defence Act provides:

(C)

119.17 – ORDER THAT ACCUSED PERSON REMAIN IN HOSPITAL

Section 202.11 of the National Defence Act provides:

(C)

119.18 – STATUS QUO PENDING REVIEW BOARD'S HEARING

Subsection 202.21(1) of the National Defence Act provides:

(C)

119.19 – ORDER OR DIRECTION FOR CUSTODY OR RELEASE FROM CUSTODY

Subsection 202.21(2) of the National Defence Act provides:

(C)

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Section 3 – Post Trial Review of Fitness Issue by Review Board of Appropriate Province

119.20 – POWERS AND DUTIES OF REVIEW BOARDS

Section 202.25 of the National Defence Act provides:

(C)

NOTES

(A) Where an accused person is found unfit to stand trial by a court martial, section 202.25 of the National Defence Act requires the Review Board of the appropriate province or territory to hold a hearing and to make a disposition in respect of the accused person or, where the court martial has made a disposition, review the disposition made by the court martial. Where no disposition has been made by a court martial, the Review Board must act within 45 days of the finding. Where a disposition has been made, the Review Board must act before the disposition expires and not later than 90 days after the disposition was made.

(B) For courts martial held in Canada, the appropriate Review Board is the Review Board of the province or territory in which the court martial is held. For courts martial held outside Canada, the appropriate Review Board is the Review Board with which the Minister of National Defence makes arrangements for the benefit of the accused person. See sections 197 and 202.2 of the National Defence Act and section 35 of the Interpretation Act.

(C)

119.21 – WHERE REVIEW BOARD SENDS ACCUSED PERSON BACK TO COURT MARTIAL

(1) Subsections 202.1(1) to (3) of the National Defence Act provide:

(2) Where a court martial is convened pursuant to this article, the direction that the issue of the fitness of the accused person to stand trial be tried by court martial and, where found fit, that the accused person be tried as if the issue of fitness had never arisen shall be endorsed on the original charge sheet and the endorsement shall be signed and dated by the Court Martial Administrator.

(M) (1 September 1999)

NOTE

An endorsement under this article should be in the following form:

(C)

119.22 – BURDEN OF PROOF THAT ACCUSED PERSON HAS SUBSEQUENTLY BECOME FIT

Subsection 202.1(4) of the National Defence Act provides:

(C)

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Section 4 – Periodic Inquiry by Court Martial as to Sufficiency of Evidence

119.23 – MANDATORY INQUIRY EVERY TWO YEARS – PROOF OF PRIMA FACIE CASE

Section 202.12 of the National Defence Act provides:

(C) (1 September 1999)

119.24 – BURDEN OF PROOF AT INQUIRY

At an inquiry under subsection 202.12(1) of the National Defence Act, the burden of proof that there is sufficient evidence to put the accused on trial is on the prosecutor.

(M)

119.25 – FORM OF DIRECTION TO HOLD INQUIRY

A direction pursuant to subsection 202.12(1) of the National Defence Act shall be signed by the Court Martial Administrator and should be in the following form:

DIRECTION

It is directed pursuant to subsection 202.12(1) of the National Defence Act that a (Standing or Special General, as applicable) Court Martial hold an inquiry and determine whether sufficient evidence can be adduced to put on trial

________________________________________________________
(service number and rank (if applicable), and full name)

The proceedings shall commence at __________________ hours or as soon as possible
(time)

after that at _______________________________________________,
(place)

on the ________________ day of _______________, ________________,
(month)(year)

Signed this _____________ day of ______________, ________________.
(month)(year)

______________________________
Court Martial Administrator

(M) (1 September 1999)

119.26 – DIRECTION TO HOLD INQUIRY – PRELIMINARY ACTION BY COURT MARTIAL ADMINISTRATOR

(1) Prior to convening a court martial pursuant to subsection 202.12(1) of the National Defence Act, the Court Martial Administrator shall consult with the Director of Military Prosecutions and the commanding officer of the accused person to ensure that sufficient qualified personnel are available to hold the inquiry.

(2) The Court Martial Administrator shall forward:

1. to the military judge assigned to preside at the proceedings
   1. the court martial convening order,
   2. the charge sheet containing the charges upon which the accused person was found unfit to stand trial,
   3. a copy of any information provided by the original court martial upon termination of its proceedings, and
   4. a copy of any information provided upon termination of any inquiry pursuant to section 202.12 of the National Defence Act; and
2. to the prosecutor, the accused person and the commanding officer of the accused person, copies of the documents described in subparagraph (a).

(M) (1 September 1999)

(119.27: REPEALED 1 SEPTEMBER 1999)

119.28 – ACCUSED PERSON TO BE INFORMED OF WITNESSES

(1) The prosecutor should, before any hearing pursuant to section 202.12 of the National Defence Act commences, give reasonable notice to the accused of any witness that the prosecutor proposes to call and any document that the prosecutor proposes to introduce as evidence pursuant to article 119.31 (Evidence Admissible at Inquiry).

(2) The prosecutor is not required to call every witness or introduce every document in respect of which notice is given pursuant to paragraph (1).

(M)

119.29 – PROCEDURE

(1) This article applies to inquiries pursuant to section 202.12 of the National Defence Act.

(2) At the beginning of the inquiry:

1. unless the inquiry is to be held in camera, members of the public shall be admitted; and
2. the applicant, the accused person and his or her legal counsel shall take their places.

(3) The presiding judge shall identify himself and ask whether the accused or the prosecutor objects to the application being heard by him and, if there is an objection, follow the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) with any necessary changes.

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

1. take the oath prescribed in article 112.16 (Oath to be Taken by Judge Presiding at Court Martial);
2. swear the court reporter (see article 112.18 – Oath to be Taken by Court Reporter); and
3. if it is proposed to have an interpreter, and if there is no objection to the interpreter (see article 112.15 – Objection to Interpreter), swear the interpreter (see article 112.19 – Oath to be Taken by Interpreter).

(5) The prosecutor, followed by the accused, may make any statement that is pertinent to the application, and witnesses may be called first by the prosecutor and then by the accused.

(6) Following any action under paragraph (5), the prosecutor and then the accused may address the judge, and the prosecutor shall have the right to address the judge in reply to any address by the accused.

(7) The judge shall determine whether or not the prosecutor has established that sufficient admissible evidence can be adduced to put the accused person on trial and shall announce the decision.

(8) The judge shall terminate proceedings and cause the Judge Advocate General to be informed of the outcome of the inquiry.

(9) The judge may

1. permit the accused to be absent during the whole or any part of the inquiry on such conditions as the judge considers proper; and
2. cause the accused to be removed and kept out of the place where the inquiry is being held where the accused misconducts himself by interrupting the proceedings so that to continue the proceedings in the accused's presence would not be feasible.

(M) (1 September 1999)

119.30 – PROCEDURE GENERALLY –APPLICATION OF National Defence Act AND REGULATIONS

Except as otherwise specifically provided in this chapter, all provisions of the National Defence Act and of the regulations that apply to the trial of a person by a court martial shall, where the context permits, apply with any necessary changes to an inquiry under this section.

(M) (1 September 1999)

119.31 – EVIDENCE ADMISSIBLE AT INQUIRY

A court martial holding an inquiry pursuant to section 202.12 of the National Defence Act may admit as evidence

1. any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or
2. any certified copy of the oral testimony given at a previous inquiry or hearing before a court martial in respect of the offence with which the accused is charged.

(G)

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Section 5 – Mental Disorder When Offence Committed

119.32 – PRESUMPTION OF RESPONSIBILITY

Subsection 202.13(2) of the National Defence Act provides:

(C)

119.33 – DEFENCE OF MENTAL DISORDER

Subsection 202.13(1) of the National Defence Act provides:

(C)

NOTE

Section 16 of the Criminal Code and subsection 202.13(1) of the National Defence Act codify the common law principle that an accused person cannot be held responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. However, the rules respecting the operation of the defence at trial remain in common law.

Under the common law rules, the prosecutor may not introduce in the main trial evidence of the accused person's mental disorder unless the accused person puts in issue his mental capacity to commit the offence. Where the accused person does not put his mental capacity in issue in the conduct of his defence, the prosecutor may, after the main trial, introduce evidence of the accused person's mental disorder in order to trigger a finding of not responsible on account of mental disorder. However, this may only be done if the court has concluded that the accused person was otherwise guilty of the offence charged. This point in the trial arises only when the court reopens to announce its finding in respect of each charge and the presiding military judge verifies their legality. Article 119.35 (Evidence of Mental Disorder Where Accused Does Not Raise the Issue) sets out the procedure for this eventuality.(1 September 1999)

The operation of the defence of mental disorder entails subtle Charter considerations. Reference should be made to the relevant case law for a complete statement of the common law rules.

(C) (1 September 1999)

119.34 – BURDEN OF PROOF

Subsection 202.13(3) of the National Defence Act provides:

(C)

119.35 – EVIDENCE OF MENTAL DISORDER WHERE ACCUSED DOES NOT RAISE THE ISSUE

(l) The court martial may, at the request of the prosecutor, hear evidence that the accused is not responsible for an offence on account of mental disorder where:

1. the accused did not put his mental capacity to commit the offence in issue during the conduct of the defence; and
2. the court has concluded that the accused would otherwise be found guilty of the offence or an offence referred to in sections 133 to 137 of the National Defence Act (see articles 103.62 – Conviction of Related or Less Serious Offences, 103.63 – Conviction of Attempt to Commit Offence and 103.64 – Special Findings).

(2) The request shall be made

1. in the case of a General Court Martial or Disciplinary Court Martial, after the presiding military judge has verified the legality of the court's finding but before the finding is pronounced; or
2. in the case of a Special General Court Martial or a Standing Court Martial, after the presiding military judge reopens the court to pronounce the finding but before the finding is pronounced.

(3) Where the request is granted, the procedure shall be:

1. the prosecutor, followed by the accused, may make any statement that is pertinent to the issue, and witnesses may be called first by the prosecutor and then by the accused;
2. following any action under subparagraph (a), the prosecutor and then the accused may address the court martial, and the prosecutor shall have the right to address the court in reply to any address by the accused;
3. in the case of a General Court Martial or a Disciplinary Court Martial, the presiding military judge shall advise the members of the court martial panel upon the relevant law and sum up the evidence presented;
4. the court martial shall close to determine whether to make a finding of not responsible on account of mental disorder (see article 112.41 – Determination of Finding – General Court Martial or Disciplinary Court Martial and article 119.37 – Finding of Not Responsible on Account of Mental Disorder); and
5. the court martial shall reopen and announce its decision.

(M) (1 September 1999)

119.36 – POWER TO MAKE ASSESSMENT ORDER – DETERMINATION WHETHER ACCUSED NOT RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

(1) Subsection 202.13(4) of the National Defence Act provides:

(2) Subject to paragraph (3), a court may make an assessment order under paragraph (1) at any stage of the proceedings against the accused on its own motion, or on application of the accused or the prosecutor.

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the alleged offence so as to be exempt from responsibility, the court may only order the assessment

1. during the main trial, if the accused puts his mental capacity for intent into issue; or
2. following the main trial, if the prosecutor satisfies the court martial that there are reasonable grounds to doubt that the accused is responsible for the alleged offence, on account of mental disorder.

(M)

NOTE

The regulations respecting assessment orders are prescribed in Section 7 (Assessment Orders and Assessment Reports) of this chapter.

(C)

119.37 – FINDING OF NOT RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

Subsection 202.14(1) of the National Defence Act provides:

(C)

119.38 – DISPOSITION HEARING

Subsection 202.15(1) of the National Defence Act provides:

(C)

NOTE

The regulations respecting disposition hearings are prescribed in section 6 (Dispositions) of this chapter.

(C)

119.39 – POWER TO MAKE ASSESSMENT ORDER – DETERMINATION OF APPROPRIATE DISPOSITION

(1) Subsection 202.15(2) of the National Defence Act provides:

(2) A court martial may make an assessment order under paragraph (1) at any stage of the proceeding against the accused on its own motion, or on application of the accused or the prosecutor. (1 September 1999)

(M) (1 September 1999)

119.40 – POWER TO MAKE DISPOSITION –ACCUSED FOUND NOT RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

Section 202.16 of the National Defence Act provides:

(C) (1 September 1999)

119.41 – STATUS QUO PENDING REVIEW BOARD'S HEARING

Subsection 202.21(1) of the National Defence Act provides:

(C)

119.42 – ORDER OR DIRECTION FOR CUSTODY OR RELEASE FROM CUSTODY

Subsection 202.21(2) of the National Defence Act provides:

(C)

119.43 – EFFECT OF FINDING OF NOT RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

Subsection 202.14(2) of the National Defence Act provides:

(C) (1 September 1999)

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Section 6 – Dispositions

119.44 – PROCEDURE AT DISPOSITION HEARING

(1) A disposition hearing pursuant to subsection 200(2), section 202 or subsection 202.15(1) of the National Defence Act shall be held in accordance with this article.

(2) The hearing shall take place in the absence of the members of the court martial panel. (1 September 1999)

(3) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

(4) The court may designate as a party any person who has a substantial interest in protecting the interests of the accused, if the court is of the opinion that it is just to do so.

(5) Notice of the hearing shall be given to the parties, within the time and in the manner fixed by the court.

(6) Where the court considers it to be in the best interests of the accused and not contrary to the public interest, the court may order the public or any members of the public to be excluded from the hearing or any part of the hearing.

(7) Subject to paragraph (8), the accused has the right to be present during the whole of the hearing.

(8) The court may

1. permit the accused to be absent during the whole or any part of the hearing on such conditions as it considers proper; or
2. cause the accused to be removed and barred from re-entry for the whole or any part of the hearing
   1. where the accused interrupts the hearing so that to continue in the presence of the accused would not be feasible,
   2. on being satisfied that failure to do so would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, or
   3. in order to hear, in the absence of the accused, evidence, oral or written submissions, or the cross-examination of any witness concerning whether grounds exist for removing the accused pursuant to sub-subparagraph (ii).

(9) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted to the court in writing.

(M) (1 September 1999)

119.45 – PROCEDURAL IRREGULARITY DURING DISPOSITION HEARING

Subsection 202.22(1) of the National Defence Act provides:

(C)

119.46 – REASONS FOR DISPOSITION

Subsection 202.22(2) of the National Defence Act provides:

(C)

119.47 – TRANSMITTAL OF TRANSCRIPT

Subsection 202.22(3) of the National Defence Act provides:

(C)

119.48 – EFFECTIVE PERIOD OF DISPOSITION

Section 202.2 of the National Defence Act provides:

(C)

119.49 – ORDER OF COMMITTAL ORDER

(1) Subsection 202.22(4) of the National Defence Act provides:

(2) A committal order should be in the following form:

COMMITTAL ORDER

TO: __________________________________________________________
(title of officer or official and name of hospital or other appropriate institution)

WHEREAS: _______________________________________________
(service number and rank, if applicable, and full name)

has been charged with having committed (an) offence(s) under section(s) _______ of the National Defence Act;

AND WHEREAS on the __________ of ______________, ________________________,
(month) (year)

the accused person was found (unfit to stand trial or not responsible on account of mental disorder, as applicable).

Now, therefore, I, having been designated under and by virtue of the National Defence Act as a committing authority, do hereby commit the accused person to be placed and detained in custody until the accused person is delivered by due course of law.

(1) The following are the conditions to which the accused person shall be subject while in your (prison, hospital or other appropriate place):

(set out applicable conditions)

(2) The following are the powers regarding the restrictions (and the limits and conditions on those restrictions) on the liberty of the accused person that are hereby delegated to you the said keeper (administrator, warden) of the said (prison, hospital or other appropriate place):

(set out applicable powers)

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

Dated this ___________ day of ___________ , _____________.
(month) (year)

_______________________________________
(signature, name, rank and appointment)

(M)

119.50 – DISPOSITION INFORMATION

(1) In this article, "disposition information" means all or part of an assessment report submitted to the court and any other written information before the court about the accused that is relevant to making a disposition.

(2) Subject to this article, all disposition information shall be made available for inspection by, and the court shall provide a copy of it to, each party and any legal counsel representing the accused. (1 September 1999)

(3) The court shall withhold some or all of the disposition information from an accused where it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.

(4) Notwithstanding paragraph (3), the court may release some or all of the disposition information to an accused where the interests of justice make disclosure essential in its opinion.

(5) The court shall withhold disposition information from a party other than the accused, where disclosure to that party, in the opinion of the court is not necessary to the proceeding and may be prejudicial to the accused.

(6) A court that withholds disposition information from the accused or any other party pursuant to paragraph (3) or (5) shall exclude the accused or the other party, as the case may be, from the hearing during

1. the oral presentation of that disposition information; or
2. the questioning by the court or the cross-examination of any person concerning that disposition information.

(7) No disposition information shall be made available for inspection or disclosed to any person who is not a party to the proceedings

1. where the disposition information has been with-held from the accused or any other party pursuant to paragraph (3) or (5); or
2. where the court is of the opinion that disclosure of the disposition information would be seriously prejudicial to the accused and that, in the circumstances, protection of the accused takes precedence over the public interest in disclosure.

(8) No part of the record of the proceedings in respect of which the accused was excluded pursuant to sub-subparagraph (8)(b)(ii) or (iii) of article 119.44 (Procedure at Disposition Hearing) shall be made available for inspection to the accused or to any person who is not a party to the proceedings.

(9) Notwithstanding paragraphs (7) and (8), the court may make any disposition information, or a copy of it, available on request to any person or member of a class of persons

1. that has a valid interest in the information for research or statistical purposes, where the court is satisfied that disclosure is in the public interest;
2. that has a valid interest in the information for the purposes of the proper administration of justice; or
3. that the accused requests or authorizes in writing to inspect it, where the court is satisfied that the person will not disclose or give to the accused a copy of any disposition information withheld from the accused pursuant to paragraph (3) or (5), or of any part of the record of proceedings referred to in paragraph (8), or that the reasons for withholding that information from the accused no longer exist.

(10) A person to whom the court makes disposition information available under subparagraph (9)(a) may disclose it for research or statistical purposes, but not in any form or manner that could reasonably be expected to identify any person to whom it relates.

(11) No person shall publish in any newspaper within the meaning of section 297 of the Criminal Code or broadcast

1. any disposition information that is prohibited from being disclosed pursuant to paragraph (7); or
2. any part of the record of the proceedings in respect of which the accused was excluded pursuant to sub-subparagraph (b)(ii) or (iii) of article 119.44.

(12) Except as otherwise provided in this section, nothing in this section limits the powers that a court may exercise apart from this section.

(M) (1 September 1999)

119.51 – ARREST WHILE IN BREACH OF DISPOSITION

Subsection 202.23(2) of the National Defence Act provides:

(C)

119.52 – ACTION FOLLOWING ARREST WHILE IN BREACH OF DISPOSITION

Subsections 202.23(1) and (3) of the National Defence Act provide:

(C)

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Section 7 – Assessment Orders and Assessment Reports

119.53 – CONTENTS OF ASSESSMENT ORDER

(1) An assessment order must specify

1. the service that or the person who is to make the assessment, or the hospital where it is to be made;
2. whether the accused is to be detained in custody while the order is in force; and
3. the period that the order is to be in force, including the time required for the assessment and for the accused to travel to and from the place where the assessment is to be made.

(2) An assessment order should be in the following form:

ASSESSMENT ORDER

WHEREAS the court martial has reasonable grounds to believe that evidence of the mental

condition of _____________________, who has been charged with _______________ may
(name of accused person)

be necessary to determine *

• (whether the accused person is unfit to stand trial)
• (if a finding of unfit to stand trial or a finding of not responsible on account of mental disorder has been made in respect of the accused person, the appropriate disposition to be made in respect of the accused person under section 201, 202 or 202.16 of the National Defence Act)
• (if a stay of proceedings should be ordered under subsection 202.121(7) of the National Defence Act)
• (whether the accused person suffered from a mental disorder so as to exempt the accused person from responsibility by virtue of subsection 202.13 (1) of the National Defence Act at the time the act or omission charged against the accused person)

This court martial hereby orders an assessment of the mental condition of ___________
(name of accused person)

to be conducted by ________________________________________________________
(name of person or service by whom or place where assessment is to be made)

at _________________________ for a period of _________________________ days.

This order is to be in force for a total of _____________ days, including travelling time, during which time the accused person is to remain *

• in custody at a (place where accused person is to be detained)
• out of custody, on the following conditions: (set out conditions if applicable)

* Insert applicable option.

Dated this ______ day of __________ , ___________________.
(month) (year)

_______________________________________
(signature of the presiding military judge)

NOTE

Section 149.1 of the National Defence Act and subsection 747.1(1) of the Criminal Code cited in the assessment order prescribed in paragraph (2) of this article have received Royal Assent but have not been proclaimed in force.

(C) (1er septembre 1999)

119.54 – CONDITIONS FOR CUSTODY DURING ASSESSMENT

(1) Subsection 202.17(1) of the National Defence Act provides:

(2) Subsection 202.18(1) of the National Defence Act provides:

(C) (1 September 1999)

119.55 – VARIATION OF ASSESSMENT ORDER

Subsection 202.18(2) of the National Defence Act provides:

(C) (1 September 1999)

119.56 – NO TREATMENT ORDER ON ASSESSMENT

Subsection 202.17(3) of the National Defence Act provides:

(C) (1 September 1999)

119.57 – PERIODS OF ASSESSMENT

(1) An assessment order shall not be in force for more than thirty days.

(2) No assessment order to determine whether the accused is unfit to stand trial shall be in force for more than five days, excluding holidays and the time required for the accused to travel to and from the place where the assessment is to be made, unless the accused and the prosecutor agree to a longer period not exceeding thirty days.

(3) Notwithstanding paragraphs (1) and (2), a court martial may make an assessment order that remains in force for sixty days where the court martial is satisfied that compelling circumstances exist that warrant it.

(M)

119.58 – EXTENSIONS OF PERIODS OF ASSESSMENT

(1) Subject to paragraph (2), a court martial may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or after the period that the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.

(2) No extension of an assessment order shall exceed thirty days, and the period of the initial order together with all extensions shall not exceed sixty days.

(M)

119.59 – ASSESSMENT REPORTS

(1) Section 202.19 of the National Defence Act provides:

(2) A court martial shall withhold some or all of the assessment report from an accused where it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.

(3) A court martial shall send to the Review Board without delay a copy of any report filed with it pursuant to subsection 202.19(2) of the National Defence Act, to assist in determining the appropriate disposition to be made in respect of the accused.

(M)

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Section 8 – Protected Statements

119.60 – PROTECTED STATEMENTS NOT ADMISSIBLE AGAINST ACCUSED

Subsections 202.24(1) and (2) of the National Defence Act provides:

(C) (1 September 1999)

119.61 – EXCEPTIONS

Subsection 202.24(3) of the National Defence Act provides:

(C)

(119.62 TO 119.99 INCLUSIVE: NOT ALLOCATED)