QR&Os: Volume II - Chapter 111 Convening Of Courts Martial And Pre-Trial Administration

Official Format

Effective 1 August 2015, the official version of the QR&O is that published in PDF format on this website. In the event of any inconsistency between this consolidation and any printed or electronic copy, this consolidation prevails to the extent of the inconsistency. The HTML version on this website is provided solely for the convenience of readers. Any discrepancies between the HTML and the official PDF version should be reported to the DSCS, Corporate Secretary.

Amendment List:

  • 18 October 2013 – amended heading: 111.10
  • 18 October 2013 – replaced article: 111.10
  • 18 October 2013 – replaced Note: 111.10
  • 19 October 2012 – amended article: 111.03
  • 18 July 2008 – amended article: 111.02
  • 18 July 2008 – new article: 111.021
  • 18 July 2008 – new article: 111.022
  • 18 July 2008 – new article: 111.023
  • 18 July 2008 – new article: 111.024
  • 18 July 2008 – new article: 111.025
  • 18 July 2008 – amended article: 111.03
  • 18 July 2008 – amended article: 111.04
  • 18 July 2008 – amended article: 111.09
  • 18 July 2008 – amended article: 111.13
  • 5 June 2008 – amended article: 111.06

History:

Section 1 – Application

111.01 – APPLICATION

This chapter applies to the convening of courts martial and pre-trial administration.

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


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Section 2 – Court Martial Administrator

111.02 – CONVENING OF COURTS MARTIAL

(1) Subsection 165.19(1) of the National Defence Act provides:

"165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members." (18 July 2008)

(2) The order convening a court martial shall:

  1. state the date the Director of Military Prosecutions or other authorized officer preferred charges against the accused;
  2. state the type of court martial convened, the date and time proceedings commence, the place where it will be held and the language of proceedings chosen by the accused;
  3. identify by name, service number and rank if applicable, the accused person, the military judge assigned to preside at the court martial and, in the case of a General Court Martial, the members and alternate members; and
    (18 July 2008)
  4. require the members and alternate members to assemble on the date, time and place specified in the convening order subject to any direction by the military judge assigned to preside at the court martial.

(2.1) Despite paragraph (2), the Court Martial Administrator may issue a separate order to identify the members and alternate members of a General Court Martial and require them to assemble, if the Court Martial Administrator considers it to be more efficient for the administration of the convening process. (18 July 2008)

(3) A court may be convened to try more than one accused, but the trial of each of the accused shall be separate unless the accused are to be tried jointly (see article 110.09 – Joint Trials).

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

111.021 – MANDATORY GENERAL COURT MARTIAL

Subsection 165.191 of the National Defence Act provides

"165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

  1. an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;
  2. an offence punishable under section 130 that is punishable by imprisonment for life; or
  3. an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

(2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

(3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal."

(C) [18 July 2008]

111.022 – MANDATORY STANDING COURT MARTIAL

Section 165.192 of the National Defence Act provides

"165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

  1. an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or
  2. an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament."

(C) [18 July 2008]

111.023 – CHOICE OF TYPE OF COURT MARTIAL

(1) Subsections 165.193(1) to (3) and (7) of the National Defence Act provide

"165.193 (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.

(2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

(3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.

...

(7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section"

(2) The following form should be used by the Court Martial Administrator to notify the accused person and by the accused person to choose the type of court martial:

NOTICE
CHOICE OF TRIAL BY GENERAL COURT MARTIAL
OR STANDING COURT MARTIAL

TO: (service number and rank (if applicable) and name of accused person)

1. The attached charge sheet has been referred to the Court Martial Administrator to convene a court martial for your trial.

2. Given the offences charged, subsection 165.191(1) of the National Defence Act requiring a General Court Martial to be convened, and section 165.192 requiring a Standing Court Martial to be convened, do not apply.

3. In these circumstances, you have the right, pursuant to subsection 165.193(1), to choose to be tried by a General Court Martial or a Standing Court Martial.

4. You must notify the Court Martial Administrator in writing of your choice within 14 days after the day you receive this notice. If you do not, you will be deemed, pursuant to subsection 165.193(3), to have chosen to be tried by General Court Martial.

5. You may indicate your choice below and return this notice to the Court Martial Administrator by mail, courier, or by facsimile or other electronic means at

(insert civic address, telephone and facsimile numbers, and e-mail address)

Court Martial Administrator (date)

NOTE

The choice of the type of court martial to try an accused person has important implications for the conduct of the trial. The accused person may wish to consult legal counsel before making this decision. Sections 165.191, 165.192 and 165.193 of the National Defence Act are on the reverse side of this form or are provided as an attachment.

CHOICE OF ACCUSED PERSON

I, (name of accused person), acknowledge receipt of the above notice provided to me on (date).

I choose to be tried by (General or Standing) Court Martial.

(signature) (date)
(signature)(date)

Attachment: Charge Sheet

(3) If the Court Martial Administrator forwards the notice and charge sheet to the commanding officer of the accused person for delivery to the accused person, the commanding officer shall ensure that the documents are delivered without delay to the accused person.

(4) The person delivering the notice and charge sheet to the accused person shall record the time and date of delivery and should use the following form:

DELIVERY OF NOTIFICATION

I personally delivered a copy of the notice and charge sheet to (service number and rank (if applicable) and name of the accused person). Delivery was made at (time) hours on the _____ day of (month), (year).

(signature and name of person delivering the notice and charge sheet)

(5) The commanding officer shall ensure that a copy of the delivery of notification form is sent to the Court Martial Administrator, without delay, by the most expeditious means.

(6) If the accused person requests that a copy of the completed notice provided at paragraph (2) be sent to the Court Martial Administrator, the commanding officer shall ensure that it is sent by the most expeditious means.

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

111.024 – CHANGE OF CHOICE BY ACCUSED PERSON

Subsections 165.193(4) and (5) of the National Defence Act provide

"(4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

(5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice."

(C) [18 July 2008]

111.025 – CHOICE WHERE CHARGES PREFERRED JOINTLY

Subsection 165.193(6) of the National Defence Act provides

"(6) If charges are preferred jointly and all of the accused persons do not choose – or are not deemed to have chosen – to be tried by the same type of court martial, they must be tried by a General Court Martial."

(C) [18 July 2008]

111.03 – PROCEDURE FOR APPOINTMENT OF COURT MARTIAL MEMBERS

(1) The Court Martial Administrator shall select, using random methodology, sufficient eligible officers and, where applicable, non-commissioned members capable of performing the duties of members and alternate members for the court martial in the language of trial chosen by the accused.

(2) The Court Martial Administrator shall appoint the officers and non-commissioned members selected pursuant to paragraph (1).

(3) The Court Martial Administrator shall not appoint an officer or non-commissioned member selected pursuant to paragraph (1) where the officer or non-commissioned member:

  1. is a person referred to in section 168 of the National Defence Act;
    (18 July 2008)
  2. is currently serving, was serving at the time of the alleged commission of the offence or will be serving during the period the court martial is expected to take place, in the unit of the accused;
  3. is the immediate subordinate of another officer or non-commissioned member who has been selected as a member of the court martial;
  4. will be on the Medical Patient Holding List or retirement leave during the period the court martial is expected to take place; or
  5. has been convicted of a service offence or of an indictable offence under the Criminal Code or any other Act of Parliament, unless a clemency measure is in effect in respect of that offence.

(4) The Court Martial Administrator may excuse from performing court martial duties an officer or non-commissioned member selected pursuant to paragraph (1) where the Court Martial Administrator is satisfied that:

  1. the officer or non-commissioned member will be required, during the period the court martial is expected to take place, for duties sufficiently urgent and important to warrant the officer or non-commissioned member not being appointed;
  2. the officer or non-commissioned member is scheduled during the period the court martial is expected to take place, to attend a course for which the officer or non-commissioned member is placed on the Advanced Training List or a similar course that is important for the officer or non-commissioned member's professional development or career progression;
  3. the officer or non-commissioned member has served as a member of a court martial within the preceding 24 months;
  4. the officer or non-commissioned member is unfit to perform court martial duties as a result of illness or injury;
  5. the officer or non-commissioned member has compassionate reasons for not being appointed to perform court martial duties, such as serious illness, injury or death in the officer's or non-commissioned member's family; or
  6. appointment of the officer or non-commissioned member to perform court martial duties may cause serious hardship or loss to the officer or non-commissioned member or others.

(5) Where an officer or non-commissioned member selected pursuant to paragraph (1) is not appointed to perform court martial duties for a reason set out in paragraph (3) or (4), the Court Martial Administrator shall record the reason and select a replacement in accordance with this article.

(6) The Court Martial Administrator shall, at the request of the presiding military judge, appoint a replacement for any member of a General Court Martial if no alternate remains to replace the member. (18 July 2008)

(7) The Court Martial Administrator shall maintain for each General Court Martial a record indicating (18 July 2008)

  1. the name of each officer and non-commissioned member selected pursuant to paragraph (1); and
  2. the name of any officer or non-commissioned member who is not appointed pursuant to paragraph (3) or who is excused pursuant to paragraph (4) and the reasons therefor.

(8) The record referred to in paragraph (7) shall be open to examination on request by the accused or the prosecutor of a court martial.

(9) The Chief Military Judge may issue such instructions and directions to the Court Martial Administrator as the Chief Military Judge considers necessary for the proper administration of the selection and appointment of the members of General Courts Martial. (18 July 2008)

(G) [P.C. 2008-1319 effective 18 July 2008; P.C. 2012-1109 effective 19 October 2012 – (3)(e)]

111.04 – APPOINTMENT OF ALTERNATE MEMBERS

(1) At least two officers should be appointed as alternates for each General Court Martial of an officer.

(2) At least one officer and one non-commissioned member should be appointed as alternates for each General Court Martial of a non-commissioned member.

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


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Section 3 – Forwarding of Convening Order and Charge Sheet

111.05 – DUTY OF COURT MARTIAL ADMINISTRATOR

When the Court Martial Administrator convenes a court martial, the Court Martial Administrator shall provide:

  1. the convening order and the charge sheet to the military judge assigned to preside at the court martial;
  2. a copy of the convening order and charge sheet to the Director of Military Prosecutions and the commanding officer of the unit in which the accused is present; and
  3. a copy of the convening order to the members of the court martial panel.

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

111.06 – DELIVERY OF DOCUMENTS TO ACCUSED

(1) The commanding officer of the unit in which the accused is present shall ensure that a copy of the convening order and charge sheet are delivered personally to the accused.

(2) The documents referred to in paragraph (1) shall also be delivered to

  1. legal counsel appointed for an accused under article 107.10 (Appointment of Legal Counsel – Accused Unfit to Stand Trial); or
  2. other legal counsel representing the accused if the commanding officer has reasonable grounds to believe that the accused is suffering from a mental disorder.

(G) [P.C. 2008-1015 effective 5 June 2008]

111.07 – RECEIPT FOR DOCUMENTS

(1) The person delivering the copy of the convening order and charge sheet to the accused shall obtain an acknowledgement of receipt, which should be in the following form:

RECEIPT FOR DOCUMENTS DELIVERED TO ACCUSED

I acknowledge that at (time) hours, on the _____ day of (month), (year), I received a copy of the convening order and charge sheet pertaining to my trial by court martial.

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

WITNESS

(service number and rank (if applicable) and name of accused)

(2) If the accused refuses to sign the receipt, the person delivering the copy of the convening order and charge sheet shall endorse the receipt to that effect, noting the date and time of the delivery.

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


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Section 4 – Procurement of Witnesses

111.08 – DUTY TO PROCURE WITNESSES

Section 183 of the National Defence Act provides:

"183. (1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.

(1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.

(2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.

(3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.

(4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire."

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

111.09 – METHOD OF PROCURING WITNESSES

(1) Section 249.22 of the National Defence Act provides

"249.22 (1) Every person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.

(2) Every person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.

(3) A person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue."

(2) A summons issued under section 249.22 of the National Defence Act should be in the following form:

SUMMONS TO A WITNESS

 

CANADA
Province of _____

To _____
(name of witness)

WHEREAS a (General or Standing) Court Martial has been convened for the trial of (service number and rank (if applicable), surname, given name(s)) on the charge(s) set out in the attached charge sheet dated __________.

I summon and require you to attend, as a witness, before the Court at (place) on the _____ day of (month), (year) at (time) o'clock in the (fore or after) noon and so from day to day until excused by the Court, to testify as to what you know concerning the charge(s) made against the accused, and have with you then and there any documents in your possession or under your control relating to the charge(s) and more particularly:


Delete if documents are not required

Description of documents

 
 

This Summons is issued pursuant to section 249.22 of the National Defence Act.

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

(signature)

(Specify appointment)
(which under section 249.22 of the National Defence Act must be a military judge, the Court Martial Administrator, the court martial or a commissioner taking evidence under this Act.)

NOTICE TO WITNESS

Failure to comply with this summons is an offence punishable under section 302 of the National Defence Act.


 

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

NOTES

(A) Instead of being summoned pursuant to section 249.22 of the National Defence Act, a service witness may be ordered to attend at court martial proceedings or appear before a commissioner taking evidence under the National Defence Act.

(B) When a commissioner has been appointed to take evidence (see article 112.70Evidence on Commission), the commissioner has, from the date of the appointment, power to summon witnesses under this section.

(C) [1 September 1999; 18 July 2008]

111.10 – WITNESS FEES AND ALLOWANCES

Section 251.2 of the National Defence Act provides:

"251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court."

(C) [18 October 2013]

NOTES

(A) The fees and allowances payable to witnesses who are summoned to attend before the Federal Court are set out in Tariff A of the Federal Court Rules. The tariff may be obtained by contacting the nearest representative of the Office of the Judge Advocate General.

(B) Section 251.2 of the National Defence Act does not apply to officers and non-commissioned members or officers and employees of the Department. When they appear as witnesses before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or an inquiry committee established under the regulations, they are entitled to transportation and travelling expenses as set out in applicable regulations, orders and directives.

(C) [18 October 2013]

111.11 – ACCUSED TO BE INFORMED OF PROSECUTION WITNESSES

(1) Before a trial by court martial commences, the prosecutor shall:

  1. notify the accused of any witness whom it is proposed to call; and
  2. inform the accused of the purpose for which a witness will be called and of the nature of the proposed evidence of that witness.

(2) Where the prosecutor calls a witness without notifying the accused, the accused shall have the right, after the direct examination of the witness has been completed, to postpone the cross-examination (see also article 112.62 – Adjournment).

(3) The prosecutor who does not intend to call a witness referred to in paragraph (1) shall:

  1. give the accused reasonable notice, before trial, of that intention; or
  2. if the prosecutor has not given the accused reasonable notice, call the witness for cross-examination if the accused so requests and the witness is available.

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


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Section 5 – Pre-Trial Administrative Support

111.12 – COURT MARTIAL SUPPORT

The commanding officer of the unit where the court martial is to be held is responsible for the provision of adequate accommodation, administration and personnel to the extent required to ensure that the court martial is conducted in a dignified and military manner.

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

111.13 – ADMINISTRATIVE INSTRUCTIONS

(1) The Court Martial Administrator shall determine, in consultation with unit authorities, the administrative requirements for each court martial convened and shall issue administrative instructions required for the proper administration of the court martial.

(2) The administrative instructions shall:

  1. state the type of court martial convened, the date and time proceedings commence, the place where it will be held and the language of proceedings chosen by the accused;
  2. identify by name, service number and rank if applicable, the accused person, the military judge assigned to preside at the court martial, the prosecutor, the accused person's legal counsel, the court reporter and, in the case of a General Court Martial, the members and alternate members of the court martial panel; (18 July 2008)
  3. specify the charges preferred by the Director of Military Prosecutions;
  4. specify the dress for military members and members of the public;
  5. state the requirement for publication of notice of the court martial;
  6. state the requirement for the appointment of an officer of the court and escort; and
  7. specify the financial authorities and limitations that apply in respect of the conduct of the court martial.

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

111.14 – OFFICER OF THE COURT

(1) The commanding officer of the unit in which the accused is present shall ensure that an officer of the court is appointed.

(2) The officer of the court should not be below the rank of captain, and shall not be the same person who is appointed as the accused's assisting officer.

(3) The officer of the court shall ensure, through the commanding officer of the unit where the court martial is to be held, that all administrative and domestic arrangements for the efficient functioning of the proceedings are effected.

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

NOTE

The guide titled "Court Martial Procedures: Guide for Participants and Members of the Public" issued by the Chief Military Judge describes the role and duties of the officer appointed to act as officer of the court. The guide is available on the Defence intranet or at any office of the Judge Advocate General or that of the Court Martial Administrator.

(C) [1 September 1999]

111.15 – ESCORT

The commanding officer of the unit in which the accused is present shall ensure that an escort is appointed and that the escort is:

  1. where the accused is an officer, an officer; and
  2. where the accused is a non-commissioned member, a non-commissioned member.

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

NOTE

The escort is responsible for the movements of the accused and ensuring that the accused is available when the court opens. The accused is not in custody either before or during the trial unless the accused has been placed in custody in accordance with QR&O Chapter 105 (Arrest and Pre-Trial Custody).

(C) [1 September 1999]

111.16 – LIVING ACCOMMODATION – COURT MARTIAL DUTY

(1) The military judge, members of the court martial panel and alternate members, prosecutor, legal counsel for the accused, court reporter and interpreter shall not stay in quarters, notwithstanding that quarters may be available, unless it is impracticable having regard to the location of the court martial and the constraints of military operations.

(2) Paragraph (1) does not apply to an officer or non-commissioned member who normally resides in quarters at the location where the trial is held.

(3) Once a court has been constituted, paragraph (1) does not apply to an alternate member who does not sit as a member of the court martial panel or to a member who retires from the court pursuant to article 112.14 (Objections to the Constitution of the Court Martial).

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

111.17 – DOCUMENTS PROVIDED TO THE PROSECUTOR

(1) The commanding officer of the accused shall provide the prosecutor with the following documents:

  1. a certified copy of the conduct sheet, if any, of the accused;
  2. a statement as to particulars of service of accused;
  3. a certified copy of the accused's certificate of service; and
  4. a certified copy of the accused's pay guide.

(2) The statement as to particulars of service of accused should be in the following form:

STATEMENT AS TO PARTICULARS OF SERVICE OF ACCUSED

(service number) (rank) (name) (unit)

1. The present age of the accused is: _____

2. The date of commissioning or enrolment of the accused is: _____

3. The accused has served in the following ranks continuously, without reduction, to the present date: _____

4. The accused is in possession of or entitled to the following military decorations and medals: _____

5. The following are further particulars of the record of distinguished service of the accused: _____

6. The accused has been in confinement awaiting trial on the present charges for _______ days in civil custody and _______ days in military custody, making a total of _______ days in custody, of which _______ days were spent in hospital.

7. The entries in the conduct sheet of the accused are as reflected in the copy of the conduct sheet attached hereto.
OR
There is no conduct sheet for the accused.

8. There are _______ convictions by a civil court that do not appear on the conduct sheet of the accused.

9. The accused is not under sentence at the present time.
OR
The accused, at the present time, is under sentence of _____________ beginning on the _________ day of (month), (year).

Note – If any matter in any of the above paragraphs cannot be stated from military documents, the paragraph must be struck through.

SIGNED this _______ day of (month), (year)

(name, rank and appointment)

(To be signed by or on behalf of the commanding officer of the accused, or by or on behalf of the Chief of the Defence Staff.)

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

[111.18 to 111.99 inclusive: not allocated]