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National Defence Act (R.S.C., 1985, c. N-5)

Full Document:  

Act current to 2022-11-16 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 8Provisions Applicable to Imprisonment and Detention (continued)

Temporary Removal from Incarceration

Marginal note:Authority for temporary removal

 Where the exigencies of the service so require, a service convict, service prisoner or service detainee may, by an order made by a committing authority referred to in section 219 or 220, be removed temporarily from the place to which he has been committed for such period as may be specified in that order but, until returned to that place, any person removed pursuant to this section shall be retained in service custody or civil custody, as occasion may require, and no further committal order is necessary on the return of the person to that place.

  • R.S., c. N-4, s. 188

Rules Applicable to Service Convicts and Service Prisoners

Marginal note:Rules of penitentiaries and civil prisons to apply

  •  (1) A service convict, while undergoing punishment in a penitentiary, or a service prisoner, while undergoing punishment in a civil prison, shall be dealt with in the same manner as other prisoners in the place where that convict or prisoner is undergoing punishment, and all rules applicable in respect of a person sentenced by a civil court to imprisonment in a penitentiary or civil prison, as the case may be, in so far as circumstances permit, apply accordingly.

  • Marginal note:Jurisdiction and discretion of Parole Board of Canada

    (2) If the punishment of a service convict undergoing punishment in a penitentiary or of a service prisoner undergoing punishment in a civil prison is not suspended under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant, or revoke the parole of that convict or prisoner.

  • R.S., 1985, c. N-5, s. 222
  • 1992, c. 20, s. 215
  • 1998, c. 35, s. 63
  • 2012, c. 1, s. 160
  • 2019, c. 15, s. 35

Validity of Documents

Marginal note:Legalization and rectification

 The custody of a service convict, service prisoner or service detainee is not illegal by reason only of informality or error in or in respect of a document containing a warrant, order or direction issued in pursuance of this Act, or by reason only that the document deviates from the prescribed form, and any such document may be amended appropriately at any time by the authority that issued it in the first instance or by any other authority empowered to issue documents of the same nature.

  • R.S., c. N-4, s. 190

Mental Disorder during Imprisonment or Detention

Marginal note:Persons in penitentiaries or civil prisons

 A service convict or service prisoner who, having been released from the Canadian Forces, is suffering from a mental disorder while undergoing punishment in a penitentiary or civil prison shall be treated in the same manner as if the convict or prisoner were a person undergoing a term of imprisonment in the penitentiary or civil prison by virtue of the sentence of a civil court.

  • R.S., 1985, c. N-5, s. 224
  • 1991, c. 43, s. 20

 [Repealed, 1991, c. 43, s. 20]

Transfer of Offenders

Marginal note:Transfer of offenders

  •  (1) A person who has been found guilty of an offence by a civil court in Canada or by a civil or military tribunal of any country other than Canada and sentenced to a term of incarceration may, with the approval of the Chief of the Defence Staff or an officer designated by the Chief of the Defence Staff, be transferred to the custody of the appropriate civil or military authorities of Canada for incarceration under this Act.

  • Marginal note:Imprisonment or detention of offenders transferred

    (2) A person transferred under subsection (1) may, in lieu of the incarceration to which that person was sentenced, be imprisoned or detained for the term or the remainder of the term of incarceration to which he was sentenced as though that person had been sentenced to that term by a court martial, and the provisions of this Division are applicable in respect of every person so transferred as though the person had been so sentenced.

  • Marginal note:Restriction

    (3) A person who has been found guilty of an offence by a civil court in Canada shall not,

    • (a) if sentenced by the civil court to a term of less than two years, be transferred under subsection (1) without the consent of the attorney general of the province in which that person is incarcerated; or

    • (b) if sentenced by the civil court to imprisonment for life or a term of two years or more, be transferred under subsection (1) without the consent of the Attorney General of Canada.

Parole Eligibility

Marginal note:Sentence of imprisonment for life

  •  (1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:

    • (a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

    • (d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or

    • (e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.

  • Marginal note:Provisions of Criminal Code apply

    (2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of imprisonment for life that is imposed under this Act, and for that purpose

    • (a) a reference in sections 745.2 to 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and

    • (b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.

  • 2013, c. 24, ss. 68, 132

Marginal note:Power of court martial to delay parole

  •  (1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

  • Marginal note:Condition

    (2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.

  • Marginal note:Criminal organization offences

    (3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

  • Marginal note:Power of court martial to delay parole

    (4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

  • Marginal note:Objectives

    (5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.

  • 2013, c. 24, s. 68

DIVISION 8.1Sex Offender Information

Interpretation

Marginal note:Definitions

 The following definitions apply in this Division.

crime of a sexual nature

crime of a sexual nature means a crime referred to in subsection 3(2) of the Sex Offender Information Registration Act. (crime de nature sexuelle)

database

database has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act. (banque de données)

designated offence

designated offence means

  • (a) an offence within the meaning of paragraph (a), (c), (c.1), (d) or (d.1) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;

  • (b) an offence within the meaning of paragraph (b) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;

  • (c) an attempt or conspiracy to commit an offence referred to in paragraph (a); or

  • (d) an attempt or conspiracy to commit an offence referred to in paragraph (b). (infraction désignée)

finding of not responsible on account of mental disorder

finding of not responsible on account of mental disorder includes a verdict of not criminally responsible on account of mental disorder within the meaning of subsection 672.1(1) of the Criminal Code. (verdict de non-responsabilité pour cause de troubles mentaux)

officer, or non-commissioned member, of the primary reserve

officer, or non-commissioned member, of the primary reserve means an officer, or non-commissioned member, of the reserve force

  • (a) who is required, whether on active service or not, to perform military or any other form of duty or training;

  • (b) whose primary duty is not the supervision, administration and training of cadet organizations referred to in section 46; and

  • (c) who is required to undergo annual training. (officier ou militaire du rang de la première réserve)

pardon

pardon means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code that has not been revoked. (pardon)

prescribed form

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

record suspension

record suspension means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect. (suspension du casier)

registration centre

registration centre has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act. (bureau d’inscription)

Review Board

Review Board means the Review Board established or designated for a province under subsection 672.38(1) of the Criminal Code. (commission d’examen)

  • R.S., 1985, c. N-5, s. 227
  • 1998, c. 35, s. 65
  • 2007, c. 5, s. 4
  • 2012, c. 1, s. 153
  • 2014, c. 25, s. 37

Order to Comply with the Sex Offender Information Registration Act

Marginal note:Order

  •  (1) When a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or finds the person not responsible on account of mental disorder for such an offence, it shall make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02.

  • Marginal note:Order — if intent established

    (2) When a court martial imposes a sentence on a person for an offence referred to in paragraph (b) or (d) of the definition designated offence in section 227, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a) or (c) of that definition.

  • Marginal note:Order — if previous offence established

    (3) When a court martial imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or finds the person not responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes that

    • (a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not responsible on account of mental disorder for, an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code;

    • (b) the person was not served with a notice under section 227.08 of this Act or section 490.021 or 490.02903 of the Criminal Code in connection with that offence; and

    • (c) no order was made under subsection (1) or under subsection 490.012(1) of the Criminal Code in connection with that offence.

  • Marginal note:Failure to make order

    (3.1) If the court martial does not consider the matter under subsection (1) or (3) at that time,

    • (a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;

    • (b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and

    • (c) for greater certainty, the person continues to be liable to be dealt with under the Code of Service Discipline for that purpose.

  • Marginal note:Interpretation

    (4) For the purpose of paragraph (3)(a), a previous conviction includes a conviction for an offence

    • (a) for which a person is given an adult sentence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

    • (b) that is made in ordinary court within the meaning of subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

  • (5) and (6) [Repealed, 2010, c. 17, s. 47]

  • 2007, c. 5, s. 4
  • 2010, c. 17, s. 47
  • 2014, c. 25, s. 38
 
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