QR&Os: Volume II - Chapter 105 Arrest and Pre-Trial Custody

Official Format

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Amendment List:

  • 1 June 2014 – repealed article: 105.03
  • 1 June 2014 – new article and note: 105.03
  • 1 June 2014 – new article: 105.031
  • 1 June 2014 – replaced article heading: 105.04
  • 1 June 2014 – amended article notes (C) and (D): 105.04
  • 1 June 2014 – amended article: 105.14
  • 1 June 2014 – amended article: 105.15
  • 1 June 2014 – amended article: 105.23 (French version only)
  • 26 March 2009 - new article: 105.062
  • 18 July 2008 - amended Article: 105.061
  • 5 June 2008 - amended Article: 105.18
  • 5 June 2008 - amended Article: 105.23

History:

Section 1 - Arrest

105.01 - PERSONS SUBJECT TO ARREST

Subsection 154(1) of the National Defence Act provides:

"154. (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest."

(C) [1 September 1999]

NOTES

(A) All persons subject to the Code of Service Discipline (see article 102.01- Persons Subject to the Code of Service Discipline) are liable to be arrested in the circumstances set out in this article.

(B) A person who has been or may be charged need not necessarily be placed or retained under arrest. The circumstances surrounding each case should be considered in order to determine whether arrest is appropriate.

(C) [1 September 1999]

105.02 - ARREST OF PERSONS WHO HAVE CEASED TO BE SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Subsection 155(3) of the National Defence Act provides:

"155. (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose."

(C) [1 September 1999]

NOTE

A person must be designated under this article by a commanding officer for that person to be authorized under this article to arrest or order the arrest of a person who has ceased to be subject to the Code of Service Discipline.

(C) [1 September 1999]

105.03 - ARREST AND HAND OVER OF DEPENDANTS IN FOREIGN COUNTRIES

(1) Section 272 of the National Defence Act provides:

“272. The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.”

(G) [105.03: repealed by P.C 2014-0575 effective 1 June 2014]

(C) [1 June 2014]

NOTE

Only members of the military police (see article 22.02 – Appointment as Members of Military Police) may effect an arrest under this article.

(C) [1 September 1999; 1 June 2014]

105.031 - DEFINITION OF DEPENDANTS

For the purposes of section 272 of the National Defence Act, “dependants” in respect of an officer or non-commissioned member means

  1. the officer’s or non-commissioned member’s spouse or common-law partner; and
  2. any other person wholly or mainly maintained by the officer or non-commissioned member or in their custody, charge or care.

(G) [P.C 2014-0575 effective 1 June 2014]

105.04 - POWERS OF ARREST WITHOUT WARRANT

(1) Subsections 155(1) and (2) of the National Defence Act provide:

"155. (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  1. any non-commissioned member;
  2. any officer of equal or lower rank; and
  3. any officer of higher rank who is engaged in a quarrel, fray or disorder.

(2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

  1. any non-commissioned member of lower rank; and
  2. any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder."

(2) Section 156 of the National Defence Act provides in part:

"156. Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may

  1. detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person's rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; …"

(3) Subsection 252(2) of the National Defence Act provides:

"252. (2) Any peace officer who on reasonable grounds believes or, if no peace officer is immediately available, any officer or non-commissioned member who believes on reasonable grounds that a person is a deserter or an absentee without leave may apprehend that person and forthwith bring the person before a justice."

(C) [1 September 1999; 1 June 2014 – heading]

NOTES

(A) Paragraph (3) is an additional power of arrest to be exercised when circumstances do not permit dealing with a suspected absentee or deserter according to the usual military procedure.

(B) Members of the Canadian Forces may, under certain circumstances, be authorized to arrest and hand over members of a visiting force (see section 10 of the Visiting Forces Act in QR&O Volume IV, Appendix 2.1).

(C) The officers and non-commissioned members referred to in paragraph (2) are those prescribed in article 22.02 (Appointment as Members of Military Police).

(D) For the power of officers and non-commissioned members appointed as members of the military police to arrest and hand over dependants, see article 105.03 (Arrest and Hand over of Dependants in Foreign Countries).

(C) [1 September 1999; 1 June 2014 – Notes (C) and (D)]

105.05 - ISSUE OF WARRANT FOR ARREST

Section 157 of the National Defence Act provides:

"157. (1) Subject to subsection (2), every commanding officer, and every officer to whom the power of trying a charge summarily has been delegated under subsection 163(4), may by a warrant under his hand authorize any person to arrest any other person triable under the Code of Service Discipline who

  1. has committed;
  2. is believed on reasonable grounds to have committed; or
  3. is charged under this Act with having committed

a service offence.

(2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

(3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

(4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant."

(C) [1 September 1999]

NOTE

Any person authorized in a warrant for arrest, and any one else called upon by that person to assist in the execution of the warrant, is empowered to arrest the person or persons named in the warrant.

(C) [1 September 1999]

105.06 - FORM OF WARRANT FOR ARREST

Every warrant issued for the purpose of effecting an arrest under article 105.05 (Issue of Warrant for Arrest) should be in the following form:

WARRANT FOR ARREST

To _____ and all others whom he may call upon to assist him in the execution of this warrant

 

I, _____, an officer having, under section 157 of the National Defence Act, authority to issue a warrant for arrest, hereby authorize you and all others upon whom you may call to arrest (service number and rank (if applicable) and name) who is alleged to have committed a service offence, that is to say, (specify offence)

AND you are to place this person in custody and _____

 

(Strike out words that do not apply)

(bring him to this unit)
(take him to the nearest unit or other element of the Canadian Forces)
(take him to the nearest civil jail)

 

(Subsection 157(2) of the National Defence Act – complete only if applicable)

in order that the person may answer for the said offence and be further dealt with according to law.

(Although (name of alleged offender)holds a higher rank than mine, I certify that the exigencies of the service require me to issue this warrant authorizing his arrest.)

 

(Complete only if applicable and where the requirements of s. 34.1 of the Interpretation Act have been satisfied)

Whereas there are reasonable grounds to believe that the alleged offender is or will be present in (describe dwelling-house)

This warrant is also issued to authorize you to enter the dwelling-house for the purpose of arresting or apprehending the alleged offender, subject to the condition that you may not enter the dwelling-house unless you have, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.

GIVEN under my hand this _______ day of (month), (year)

(signature)

(service number, rank and name)

(appointment and unit)

 

 

(G) [P.C. 2002-339 effective 14 March 2002] 

105.061 - JUDICIAL ARREST WARRANT

(1) Section 249.23 of the National Defence Act provides:

"249.23 Where an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused person

  1. fails to appear as summoned or ordered; or
  2. having appeared before the court martial, fails to attend before the court martial as required."

(2) Every warrant issued for the purposes of section 249.23 of the National Defence Act shall be in the following form:

WARRANT FOR ARREST - NON APPEARANCE OF ACCUSED PERSON

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 name of accused person) hereinafter called the accused person.

Whereas the accused person has been charged with the offence(s) contained in the charge sheet signed by (name of authorized officer), on the ___ day of (month), (year);

And whereas a (General or Standing) Court Martial was convened to hear the charge(s) on the ______ day of (month) , (year) at (time), at (location) by convening order dated the ____ day of (month), (year);

And whereas:

  1. the accused person has failed to appear before the (General or Standing) Court Martial as summoned or ordered;

    or
  2. the accused person, having appeared before the Court Martial, has subsequently failed to attend before the Court Martial as required.

This is therefore to command you, in Her Majesty's name, forthwith to arrest the said accused person and to bring the accused person before this (General or Standing) Court Martial to be dealt with according to law.

 

(Complete only if applicable and if the requirements of s. 34.1 of the Interpretation Act have been satisfied.)

Whereas there are reasonable grounds to believe that the accused person is or will be present in (describe dwelling-house)

This warrant is also issued to authorize you to enter the dwelling-house for the purpose of arresting or apprehending the accused person, subject to the condition that you may not enter the dwelling-house unless you have, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.

Dated this ______ day of (month), (year) at (location).

(signature of presiding military judge)

(General or Standing) Court Martial

 

 

(G) [P.C. 2008-1319 effective 18 July 2008]

105.062 - WARRANT FOR ARREST – FAILURE TO APPEAR FOR SAMPLES TO BE TAKEN

For the purpose of subsection 196.161(1) of the National Defence Act, a warrant for arrest shall be in the following form:

WARRANT FOR ARREST – FAILURE TO APPEAR FOR THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

To the peace officers of (base, unit or territorial division):

This warrant is issued for the arrest of (service number and rank (if applicable) and name), in this warrant called the "offender".

Whereas the offender failed to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4) of the National Defence Act to submit to the taking of samples of bodily substances;

This is, therefore, to command you, in Her Majesty's name, to arrest the offender without delay in order to allow the samples of bodily substances to be taken.

Dated on (day/month/year) at (location).

(signature of presiding military judge)

(rank and name of presiding military judge)

(General or Standing) Court Martial

(G) [P.C. 2009-0430 effective 26 March 2009]

105.07 - DUTY TO CARRY OUT ORDERS OF ARREST

An officer or non-commissioned member who receives an order from a superior to effect an arrest shall carry out that order notwithstanding that the member could not have made the arrest on the member's responsibility.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.08 - INFORMATION PROVIDED TO A PERSON ARRESTED OR DETAINED

(1) Subject to paragraph (2), a person who is arrested or detained shall, without delay, be informed:

  1. that the person is arrested or detained;
  2. of the reason for the arrest or detention;
  3. that the person has the right to retain and instruct counsel without delay;
  4. that the person has the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services or other duty counsel in the jurisdiction where the person is arrested or detained, and how duty counsel may be contacted; and
  5. of the existence and availability of Legal Aid plans, where applicable.

(2) When circumstances, such as the unconsciousness of the person arrested or detained, or the person's attempted escape from custody, make it impossible to comply with paragraph (1), the person arrested or detained shall be given the information as soon as it is possible to do so.

(3) The person arrested or detained shall be given an opportunity to contact counsel as soon as practical under the circumstances.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) The information under paragraph (1) of this article should be given in the following form:

"You are under arrest for (reason of arrest). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services at the following phone number . . . Advice may also be available to you from other duty counsel at the following number . . . Legal Aid may also be available to you at the following number. . . Do you understand? Do you want to exercise your rights?"

It is not essential to use this exact wording as long as the person is made aware of the facts set out in paragraph (1) of this article. However, every effort should be made to follow this format to ensure that proper information is given.

(B) Only general terms need to be used when informing the person of the reason for his arrest, e.g., "for being insubordinate".

(C) Article 105.12 (Release of Arrested Person Unless Conditions Necessary for Retention in Custody Met)requires the person making an arrest to determine, as soon as practicable after the arrest, whether the arrested person is to be retained in custody.

(C) [1 September 1999]

105.09 - USE OF FORCE IN CARRYING OUT ARREST

Subsection 154(2) of the National Defence Act provides:

"154.(2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose."

(C) [1 September 1999]

NOTE

Subsection 154(2) of the National Defence Act authorizes the use of only such force as is reasonably necessary to effect an arrest. It does not authorize the use of force that under the circumstances would be considered excessive. A person using excessive force is answerable in law for the excess. Whether the force used is excessive is a question of fact in each case.

(C) [1 September 1999]

105.10 - ARREST OF SUBORDINATE

A member who must arrest a member junior in rank shall, if practical, obtain the assistance of one or more members of rank equal or junior to that of the member who is to be arrested and shall not, unless it becomes essential, physically participate in the arrest.

(G) [P.C. 1999-1305 of effective 1 September 1999]

105.11 - SPECIAL REPORT - MEMBERS ABOVE THE RANK OF SERGEANT

Where an officer or non-commissioned member above the rank of sergeant is arrested, the commanding officer shall immediately send a report of the circumstances by message to National Defence Headquarters (Director General Military Careers).

(C) [1 September 1999]


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Section 2 - Action Following Arrest

105.12 - RELEASE OF ARRESTED PERSON UNLESS CONDITIONS NECESSARY FOR RETENTION IN CUSTODY ARE MET

(1) Subsection 158(1) of the National Defence Act provides:

"158. (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

  1. the gravity of the offence alleged to have been committed;
  2. the need to establish the identity of the person under arrest;
  3. the need to secure or preserve evidence of or relating to the offence alleged to have been committed;
  4. the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;
  5. the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and
  6. the necessity to ensure the safety of the person under arrest or any other person."

(2) Where a person making an arrest determines whether or not the arrested person is to be retained in custody, he shall inform that person that:

  1. he is released from custody; or
  2. he is being retained in custody.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

The mere fact that an investigation is not yet complete or the mere possibility of the alleged offender going absent without leave will not normally be considered sufficient reason to hold an alleged offender in custody.

(C) [1 September 1999]

105.13 - RETENTION IN CUSTODY

Subsection 158(2) of the National Defence Act provides:

"158. (2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used."

(C) [1 September 1999]

NOTES

(A) A person who is to be retained in custody should be placed in service custody rather than civil custody.

(B) Service custody includes custody in a cell, guardroom or any other suitable place at a base, unit or other element.

(C) [1 September 1999]

105.14 - DUTY TO RECEIVE INTO SERVICE CUSTODY

Subsection 158(3) of the National Defence Act provides:

“158. (3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.”

(C) [1 September 1999]

105.15 - ACTION UPON DECISION TO RETAIN IN CUSTODY

A person making an arrest who determines that the arrested person is to be retained in custody shall, as soon as practicable, ensure that the arrested person is taken under escort and committed into the custody of an officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police (see article 22.02 – Appointment as Members of Military Police).

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2014-0575 effective 1 June 2014]

105.16 - ACCOUNT IN WRITING

(1) Subsection 158(4) of the National Defence Act provides:

"158. (4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody."

(2) When a person is committed into service custody, the person shall be:

  1. told the name and rank of the person who ordered the retention in custody; and
  2. given a copy of the account in writing.

(3) The account in writing should be in the following form:

ACCOUNT IN WRITING

To: (officer or non-commissioned member i/c guard or guard-room)

 

(service number and rank (if applicable) and name of person arrested) was arrested by me at (time) hours on (date) and is committed by me to your custody at (time) hours on date) for the following reasons: _____

At (time) hours on (date) I determined that the arrested person should be retained in custody

having regard to all the circumstances, including those set out in article 105.12 (Release of Arrested Person Unless Conditions for Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces, specifically because: _____


(see Note)

 

Time of Delivery
of account in writing: (time) hours

Date: _____

(officer or non-commissioned member committing the arrested person, name, appointment and unit)

NOTE

As this account in writing may be the only information available at the time the decision to retain the arrested person in custody is reviewed, these reasons should be given in as much detail as possible having regard to the circumstances, including those set out in paragraph (1) of article 105.12 (Release of Arrested Person Unless Conditions Necessary For Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces.


 

(4) A sample account in writing is as follows:

SAMPLE ACCOUNT IN WRITING

To: Sgt B.A. Smith

 

D12 234 678 Pte B. Brown was arrested by me at 2030 hours on 18 Jul 1999 and is committed by me; to your custody at 2045 hours on 18 Jul 1999 for the following reasons:

While intoxicated he struck Cpl. R. Butler, a superior officer in the Junior Ranks Mess this evening at 2915 hours.

At 2030 hours on 18 July 1999 I determined that the arrested person should be retained in custody

having regard to all the circumstances, including those set out in article 105.12 (Release of Arrested Person Unless Conditions for Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces, specifically because:

Pte Brown was still under the influence of alcohol. He remained belligerent, and I was concerned that he would repeat the offence.


(see Note)

 

Time of Delivery
of account in writing: 2045 hours

Date: 18 Jul 1999

(signed) J.P. Robert, MCpl, Duty Corporal, 3 RCR

NOTE

As this account in writing may be the only information available at the time the decision to retain the arrested person in custody is reviewed, these reasons should be given in as much detail as possible having regard to the circumstances, including those set out in paragraph (1) of article 105.12 (Release of Arrested Person Unless Conditions Necessary For Retention in Custody Are Met) of the Queen's Regulations and Orders for the Canadian Forces.


 

(G) [P.C. 1999-1305 effective 1 September 1999]

105.17 - REPORT OF CUSTODY TO CUSTODY REVIEW OFFICER

Section 158.1 of the National Defence Act provides:

"158.1 (1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

(2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

(3) Before the report of custody is delivered to the custody review officer,

  1. a copy of the report and the account in writing must be provided to the person in custody; and
  2. the person in custody must be given the opportunity to make representations concerning the person's release from custody

(4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

(5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so."

(C) [1 September 1999]

NOTE

Section 153 of the National Defence Act defines "custody review officer" in respect of a person in custody to mean:

  1. the officer who is the person's commanding officer, or an officer who is designated by that officer; or
  2. if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer.

(C) [1 September 1999]


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Section 3 – Initial Review

105.18 - REVIEW OF REPORT OF CUSTODY

Section 158.2 of the National Defence Act provides:

"158.2 (1) The custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.

(2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1)."

(C) [1 September 1999]

NOTE

A custody review officer should obtain advice from the unit legal adviser prior to making a decision under subsection 158.2(2) of the National Defence Act.

(C) [5 June 2008]

105.19 - CONTINUING DUTY TO RELEASE

Section 158.3 of the National Defence Act provides:

"158.3 If, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody."

(C) [1 September 1999]

105.20 - DUTY TO RETAIN IN CUSTODY IF CHARGED WITH A DESIGNATED OFFENCE

Section 158.4 of the National Defence Act provides:

"158.4 Notwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody."

(C) [1 September 1999]

NOTE

For the definition of "designated offence", see section 153 of the National Defence Act.

(C) [1 September 1999]

105.21 - DUTY TO REVIEW WHERE NO CHARGE LAID

Section 158.5 of the National Defence Act provides:

"158.5 If a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody."

(C) [1 September 1999]

105.22 - RELEASE WITH OR WITHOUT CONDITIONS

(1) Subsection 158.6(1) of the National Defence Act provides:

"158.6 (1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

  1. remain under military authority;
  2. report at specified times to a specified military authority;
  3. remain within the confines of a specified defence establishment or at a location within a geographical area;
  4. abstain from communicating with any witness or specified person, or refrain from going to any specified place; and
  5. comply with such other reasonable conditions as are specified."

(2) The direction on release from custody should be in the following form and conditions, if any, must be clearly indicated and acknowledged by the individual concerned:

DIRECTION ON RELEASE FROM CUSTODY

I direct that __________ (service number and rank (if applicable) and name of person arrested) be released:

(delete (a) or (b) as applicable)

a. without conditions, or

b. on the condition that the person comply with all of the following conditions:

  1. remain under military authority;
  2. report at _____ (specify times) to _____ (specify military authority) ;
  3. remain within the confines of _____ (specify defence establishment or location within a geographical area)
  4. abstain from communicating with _____ (witness or specified person)
  5. refrain from going to _____ (specify place); and
  6.  ____________________ (other reasonable conditions as are specified)

Date: _____

_______________ (Rank, name, appointment and unit of custody review officer)

---

I, __________(service number and rank (if applicable) and name of arrested person) acknowledge and agree to comply with the above conditions as a condition of my release from arrest.

Date: _____

__________ (signature of arrested person)

__________ (name of witness to signature of arrested person)

 

 

(3) A sample of a direction on release from custody is as follows:

SAMPLE OF A DIRECTION ON RELEASE FROM CUSTODY

I direct that D11 222 333 Cpl. N.M Hébert be released:

(delete (a) or (b) as applicable)

  1. without conditions, or
  2. on the condition that the person comply with all of the following conditions:
    1. remain under military authority;
    2. report at 0700, 1800 and 2200 hours to the Base Duty Officer;
    3. remain within the confines of CFB Edmonton;
    4. abstain from communicating with Miss Lucy Gendron;
    5. refrain from going to any mess or other facility serving alcohol; and
    6. abstain from the consumption of alcohol.

Date: 17 Jun 1999

(signed) Maj B. McDonald, D/CO, 460 Sqn

---

I, D11 222 333 Cpl N.M. Hébert acknowledge and agree to comply with the above conditions as a condition of my release from arrest.

Date: 17 Jun 1999

(signed) N.M. Hébert

(signed) CWO T. Blais

 

 

(G) [P.C. 1999-1305 effective 1 September 1999]

105.23 - REVIEW OF DIRECTION TO RELEASE WITH OR WITHOUT CONDITIONS

Subsections 158.6(2) and (3) of the National Defence Act provide:

"158.6 (2) A direction to release a person with or without conditions may, on application, be reviewed by

  1. if the custody review officer is an officer designated by a commanding officer, that commanding officer; or
  2. if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

(3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1)."

(C) [1 September 1999]

NOTES

(A) The officer conducting a review should obtain advice from the unit legal adviser prior to making a decision under subsection 158.6(3) of the National Defence Act.

(B) An application for review of a direction to release with or without conditions may be made in letter or memorandum form and should be forwarded to the appropriate review authority without delay.

(C) [5 June 2008]


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Section 4 - Review by Military Judge

105.24 - HEARING BY MILITARY JUDGE

Section 159 of the National Defence Act provides:

"159. (1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

(2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed."

(C) [1 September 1999]

105.25 - NOTICE WHEN HEARING IS REQUIRED

The custody review officer shall immediately advise the nearest representative of the Director of Military Prosecutions when a person is to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

During a hearing before a military judge to determine whether a person is to be retained in custody, the Canadian Forces are normally represented by counsel appointed by the Director of Military Prosecutions. However, in the absence of counsel, the custody review officer may appoint a person to represent the Canadian Forces (see paragraph (1) of article 105.27 - Procedure at Show Cause Hearing).

(C) [1 September 1999]

105.26 - COUNSEL FOR THE PERSON IN CUSTODY

(1) Every person taken before a military judge to determine whether the person is to be retained in custody is entitled to be represented by legal counsel who is a barrister or advocate with standing at the bar of a province.

(2) When a custody review officer advises the Director of Military Prosecutions that a person is to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody, the custody review officer shall inquire as to whether the person:

  1. desires legal counsel to be appointed by the Director of Defence Counsel Services;
  2. intends to retain legal counsel at his or her own expense; or
  3. does not require legal counsel.

(3) When the person in custody desires to have legal counsel appointed by the Director of Defence Counsel Services, the custody review officer shall ascertain whether the person desires a particular legal officer assisting the Director to act as legal counsel, or whether the person is willing to accept any legal officer assisting the Director to represent him.

(4) The custody review officer shall advise the Director of Defence Counsel Services of the person's wishes.

(5) Where the person requests the services of a particular legal officer, the Director of Defence Counsel Services shall endeavour to have that officer made available for that purpose. If the particular officer requested by the person in custody is not available, the Director shall ensure that another legal officer is made available.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.27 - PROCEDURE AT SHOW CAUSE HEARING

(1) In this article,

"person in custody" (personne sous garde)
includes, unless the context otherwise requires, the legal counsel of the person in custody; and
"representative of the Canadian Forces" (représentant des Forces canadiennes)
means counsel appointed by the Director of Military Prosecutions or other person appointed by the custody review officer to represent the Canadian Forces.

(2) At the beginning of the hearing,

  1. unless the hearing is to be held in camera, members of the public shall be admitted; and
  2. the representative of the Canadian Forces, the person in custody and the military judge shall take their places.

(3) The military judge shall identify himself and ask whether the person in custody objects to the military judge presiding at the show cause hearing, and, if there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed with any necessary changes.

(4) After any objection to the military 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) Subject to paragraph (6), the representative of the Canadian Forces, followed by the person in custody, may make any statement that is pertinent to the hearing, and witnesses may be called first by the representative of the Canadian Forces and then by the person in custody, or by the military judge at any time if the military judge desires to hear any further evidence.

(6) If the person in custody is charged with a designated offence, the person in custody, followed by the representative of the Canadian Forces, may make any statement that is pertinent to the hearing, and witnesses may be called first by the person in custody and then by the representative of the Canadian Forces, or by the military judge at any time if the military judge desires to hear any further evidence.

(7) Subject to paragraph (8), following any action under paragraphs (5) or (6), addresses may be made to the military judge first by the representative of the Canadian Forces, and then by the person in custody, and the representative of the Canadian Forces shall have the right to make an address in reply to any address made by the person in custody.

(8) If the person in custody is charged with a designated offence, addresses may be made to the military judge first by the person in custody, and then by the representative of the Canadian Forces, and the person in custody shall have the right to make an address in reply to any address made by the representative of the Canadian Forces.

(9) If the military judge directs that the person in custody be released subject to an undertaking, the military judge shall prepare and deliver to the officer or non-commissioned member having custody of the person a Form of Direction and Undertaking (see article 105.28 - Release on the Giving of an Undertaking).

(10) If the military judge directs that no condition be imposed on release, the person in custody shall be released forthwith.

(11) A record of the hearing and the reasons for any direction shall be included in the minutes of the proceedings.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

Sections 159.1 to 159.7 of the National Defence Act set out in further detail the procedures to be followed at a show cause hearing.

(C) [1 September 1999]

105.28 - RELEASE ON THE GIVING OF AN UNDERTAKING

(1) An undertaking given pursuant to subsection 159.4 (1) of the National Defence Act should be in the following form:

FORM OF DIRECTION AND UNDERTAKING
(Subsection 159.4(1) of the National Defence Act)

Part I: Direction

It is directed that (service number and rank (if applicable) and full name of person in custody) be released from custody upon signing the undertaking in Part 2. It is further directed that this form be presented to the person in custody without delay.

Date: _____

Military Judge

Part 2: Undertaking

I, (service number and rank (if applicable) and full name of person in custody) undertake, as a condition of my release from custody, to comply with the following conditions:

  1. remain under military authority;
  2. report at (specify times) to (specify military authority);
  3. remain within the confines of (specify defence establishment or location within a geographical area);
  4. abstain from communicating with (witness or specified person);
  5. refrain from going to (specify place); and
  6. (other reasonable conditions as are specified).

Date: _____

(signature of person in custody)

(witness to signature of person in custody)

(2) The military judge shall include the Form of Direction and Undertaking in the minutes of the proceedings.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.29 - APPLICATION OF NATIONAL DEFENCE ACT AND REGULATIONS

Except as otherwise specifically provided in this section, all the provisions of the National Defence Act and of the regulations made pursuant to that Act that apply to the trial of an accused by court martial shall apply, where the context permits, with any modifications that the circumstances require, to any hearing pursuant to this section, including any hearing by means of a telecommunications device.

(G) [P.C. 1999-1305 effective 1 September 1999]


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Section 5 - Review by Court Martial Appeal Court

105.30 - REVIEW OF DIRECTION

Section 159.9 of the National Defence Act provides:

"159.9 (1) At any time before the commencement of a person's trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.

(2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section."

(C) [1 September 1999]


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Section 6 - Conditions of Pre-Trial Custody

105.31 - DUTIES WHILE IN CUSTODY

(1) An officer or non-commissioned member not on active service who is held in custody shall not be required to perform any duty except such as may be necessary to relieve the member of the charge of any cash, accounts or materiel for which the member is responsible or, in the case of a non-commissioned member, such as may be required to keep the member's cell in good order.

(2) An officer or non-commissioned member on active service who is held in custody may be ordered to perform any duties which the member might properly have been ordered to perform if the member had not been placed in custody, but care shall be taken to ensure that the member is not required, by reason only of being an alleged offender, to perform any duties in addition to those required of others.

(3) Notwithstanding anything in this article, an order given to a member held in custody to perform a duty or the performance of a duty by a member held in custody shall not relieve him from liability to be proceeded against for the offence for which the member was arrested.

(4) An officer or non-commissioned member held in custody may be deprived of all articles that might enable the member to cause physical harm or to facilitate escape, except when the member is required to carry out any duty under paragraph (2) which involves the bearing of arms.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.32 - AUTHORIZED VISITORS

No person shall be admitted to the place where an officer or non-commissioned member is held in custody, without the permission of the commanding officer, unless that person is:

  1. the member's commanding officer or a member designated by that commanding officer;
  2. the Officer of the Watch or Day;
  3. the orderly officer;
  4. a chaplain;
  5. a medical officer;
  6. a person immediately responsible for the member's custody;
  7. the member's assisting officer, legal counsel or adviser; or
  8. where the member does not have legal counsel, a witness for the member.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.33 - MAIL AND CORRESPONDENCE

An officer or non-commissioned member held in custody shall be permitted to send letters and telegrams and to read all correspondence addressed to the member, except that the commanding officer may direct that all letters, telegrams and other correspondence originated by or addressed to the member be scrutinized by an officer designated for that purpose by the commanding officer, and an officer so designated may withhold or return to the sender all or any part of such correspondence that he considers detrimental to:

  1. the morale of the person in custody;
  2. good order; or
  3. security.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.34 - EXERCISE

An officer or non-commissioned member held in custody shall be permitted to take, under supervision, the exercise necessary to preserve the member's health.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.35 - MESS PRIVILEGES

An officer or non-commissioned member held in custody shall be denied the privileges of any mess.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.36 - VISITS BY MEDICAL OFFICERS

The commanding officer shall ensure, where practical, that an officer or non-commissioned member who is held in custody is visited at least once daily by a medical officer.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.37 - SEGREGATION OF PRISONERS BASED ON SEX

(1) Male persons and female persons may be held in service custody in the same accommodation provided they are segregated within that accommodation.

(2) Male persons and female persons shall not be held in service custody in the exclusive charge of guards of the opposite sex, except where other arrangements are not practicable and then only for as short a time as possible.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.38 - OBSERVATION OF PERSONS IN CUSTODY

(1) A non-commissioned member below the rank of warrant officer who is held in custody or an officer or non-commissioned member above the rank of sergeant who is held in custody in a place other than the member's quarters shall be observed by the person in charge of the place where the member is held at least once every hour for the first three hours after the member arrives at that place and at least once every two hours thereafter.

(2) The person in charge of the place where the member is held in custody shall immediately send for a medical officer where any signs of illness are observed.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.39 - HOSPITALIZATION OF PERSONS IN CUSTODY

An officer or non-commissioned member in custody who is sent to a hospital shall, while in hospital and while being transferred to and from hospital, continue to be held in custody, unless the member is ordered to be released from custody by a person having authority to do so under this chapter.

(G) [P.C. 1999-1305 effective 1 September 1999]

105.40 - PERSONS HELD IN CUSTODY BY CIVIL AUTHORITIES

(1) Where a person subject to the Code of Service Discipline is in the charge of a civil authority, the commanding officer of any base, unit or element shall, upon request of the civil authority, immediately take that person in charge or cause that person to be taken in charge by another authority of the Canadian Forces.

(2) The authority who, pursuant to paragraph (1), takes the person in charge shall, upon taking charge, determine whether the person should be arrested in respect of a service offence.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

A person subject to the Code of Service Discipline may be held in service custody prior to trial only when arrested in connection with a service offence (see article 105.01 - Persons Subject to Arrest). If a civil authority requests that a person subject to the Code of Service Discipline and held in civil custody be taken over under this article, the commanding officer concerned will inform the civil authority that the person will be taken over but the Canadian Forces is not empowered to hold that person in custody except in connection with a service offence, and accordingly, that person will not, if released to the Canadian Forces, be held in custody unless subsequently placed in service custody in connection with a service offence.

(C) [1 September 1999]

[105.41 TO 105.99 INCLUSIVE: NOT ALLOCATED]