QR&Os: Volume II - Chapter 112 Procedure at Courts Martial

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Amendment List:

  • 1 June 2014 – amended article: 112.25
  • 1 June 2014 – amended article: 112.40
  • 1 June 2014 – amended article: 112.42
  • 1 June 2014 – amended article: 112.50
  • 1 June 2014 – amended article note: 112.50
  • 1 June 2014 – amended article note: 112.58 (French version only)
  • 1 June 2014 – amended article: 112.66
  • 1 June 2014 – new article: 112.71
  • 1 June 2014 – replaced article: 112.72
  • 1 June 2014 – replaced article note (A): 112.72 (English version only)
  • 1 June 2014 – amended article note (A): 112.72 (French version only)
  • 1 June 2014 – new article: 112.73
  • 18 October 2013 – replaced article: 112.16
  • 18 October 2013 – replaced article: 112.21
  • 14 June 2013 – replaced Article: 112.50
  • 14 June 2013 – added Note to Article 112.50
  • 29 September 2011 – amended Article: 112.58
  • 26 March 2009 – replaced Article: 112.56
  • 26 March 2009 – replaced Article: 112.57
  • 12 September 2008 – new Article: 112.58
  • 18 July 2008 – amended Article: 112.03
  • 18 July 2008 – amended Article: 112.04
  • 18 July 2008 – amended Article: 112.05
  • 18 July 2008 – amended Article: 112.07
  • 18 July 2008 – amended Article: 112.41
  • 18 July 2008 – amended Article: 112.47
  • 18 July 2008 – amended Article: 112.54

History:

Section 1 – General

112.01 – APPLICATION

This chapter applies to the procedure at courts martial.

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

112.02 – DEFINITION

In this chapter, unless the context otherwise requires, "accused" means the accused personally or legal counsel acting on behalf of the accused.

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

112.03 – PRELIMINARY PROCEEDINGS

(1) Section 187 of the National Defence Act provides

"187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial."

(2) Section 191.1 of the National Defence Act provides

"191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person's plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence."

(C) [18 July 2008]

112.04 – REQUIREMENT FOR REASONABLE NOTICE – PRELIMINARY APPLICATIONS AND OBJECTIONS

(1) Subject to paragraph (3), an application made under section 187 or 191.1 of the National Defence Act (see article 112.03 – Preliminary Proceedings) or paragraph 112.05(3) or (5) (Procedure to be followed at a Court Martial) may only be heard and determined if reasonable notice in writing is given to the Chief Military Judge or, if a court martial has been convened, the military judge assigned to preside at the court martial and to the opposing party. (18 July 2008)

(2) Notice pursuant to paragraph (1) shall include:

  1. sufficient detail of the nature of the application or objection and of the relief sought to enable the opposing party to respond to it without adjournment;
  2. the documentary, affidavit or other evidence to be used at the hearing of the application; and
  3. an estimate of the length of time required to present the application or objection.

(3) Where notice is not given in accordance with paragraph (1), the judge may permit an application or objection if reasonable cause for the failure to give notice is shown.

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


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Section 2 – Order of Procedure

112.05 – PROCEDURE TO BE FOLLOWED AT A COURT MARTIAL

(1) The procedure at a court martial shall be in the order set out in this article.

(2) At the beginning of court martial proceedings:

  1. members of the public shall be admitted;
  2. the prosecutor and the legal counsel and the adviser, if any, of the accused, shall take their places;
  3. the military judge assigned to preside at the court martial shall open the court; and
  4. the accused shall be brought before the court.

(3) When paragraph (2) has been complied with, the judge:

  1. shall read the convening order of the court martial; and
  2. shall ask the prosecutor and the accused whether they object to the judge assigned to preside at the court martial and, where there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed.

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

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

(5) After the oaths have been taken:

  1. the prosecutor shall read the charge sheet;
  2. the accused may object to the trial being proceeded with (see article 112.24 – Pleas in Bar of Trial);
  3. the accused may apply for further particulars on the ground that the accused is unable to properly prepare a defence because the particulars of a charge are inadequate or are not set out with sufficient clarity and the judge, if satisfied that the further particulars are necessary to ensure a fair trial, may so order;
  4. where a charge sheet contains more than one charge, the court may, if it considers the interests of justice require it, proceed with separate trials and direct the order in which those trials shall be held; and
  5. the judge may, on application by the prosecutor or the accused person, hear and determine any questions of law or mixed law and fact (in the case of a General Court Martial, see paragraph 112.07(1) – Questions of Law or Mixed Law and Fact – General Court Martial). (18 July 2008)

(6) The judge shall ask the accused to plead guilty or not guilty to each charge and, where the accused refuses to plead, a plea of not guilty shall be recorded.

(7) Where the accused pleads guilty to any charge, the procedure prescribed in article 112.25 (Acceptance of Plea of Guilty) shall be followed before that plea is accepted.

(8) After all pleas have been recorded:

  1. where offences have been charged in the alternative and a plea of guilty has been accepted to any one of the alternative charges, the judge shall direct that the proceedings on the alternative charge be stayed (see article 112.80 – Effect of a Stay of Proceedings), and the trial shall proceed in accordance with subparagraph (b) or (c), as applicable;
  2. where pleas of guilty have been accepted to all charges before the court, the judge shall discharge the members of the court martial panel and determine the sentence in accordance with Section 9 (Sentence); and
  3. where the accused has pleaded not guilty to any charge before the court, the trial in respect of the charge shall be proceeded with, before proceeding on any charge to which a plea of guilty has been accepted.

(9) In the case of a General Court Martial, the members of the court martial panel shall assemble when requested to do so by the judge and, subject to paragraph (9.1), (18 July 2008)

  1. the judge shall identify the members of the court martial panel;
  2. the judge shall ask the prosecutor and the accused whether they object to any of the members and, where there is an objection, the procedure described in article 112.14 shall be followed;
  3. the members shall take the oath prescribed in article 112.17 (Oath to be Taken by Members of Court Martial Panel);
  4. the judge shall advise the members on the charges in respect of which the accused has pleaded not guilty; and
  5. the judge shall address the members on such matters including the law relating to any charge before the court, that the judge considers necessary or desirable.

(9.1) Subparagraphs 112.05(9)(a) to (c) do not apply if the military judge has complied with paragraphs 119.102(2) to (4) (Plea in Bar of Trial at a General Court Martial – Fitness to Stand Trial) in respect of the members of the court martial panel. (18 July 2008)

(10) The prosecutor may make an opening address (see article 112.28 – Opening Address by Prosecutor).

(11) The prosecutor shall proceed with the case for the prosecution.

(12) The prosecutor shall inform the court when the case for the prosecution is closed.

(13) When the case for the prosecution is closed, the judge may, of the judge's own motion or upon the motion of the accused, hear arguments as to whether a prima facie case has been made out against the accused, and:

  1. if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce the accused not guilty on that charge; or
  2. if the judge decides that a prima facie case has been made out in respect of a charge, the judge shall direct that the trial proceed on that charge.

(14) The accused may make an opening address (see article 112.29 – Opening Address by Accused).

(15) The accused shall proceed with the case for the defence.

(16) If the accused desires to testify, the accused shall be sworn by the judge and shall testify either with or without being examined by the accused's legal counsel. If the accused has been cross-examined, the accused may be re-examined or give further evidence as if the accused were a witness being re-examined (see article 112.31 – Examination of Witnesses).

(17) The accused shall inform the court when the case for the defence is closed.

(18) When the case for the defence is closed, the prosecutor may, with the permission of the judge, call evidence in rebuttal.

(19) When the case for the defence has been closed or the prosecutor has called evidence, if any, in rebuttal:

  1. the prosecutor may address the court as to finding;
  2. the accused may address the court as to finding;
  3. in the case of a General Court Martial, the judge shall (18 July 2008)
    1. instruct the members of the court martial panel on the law relating to the case,
    2. sum up the evidence, and
    3. instruct the members of the court martial panel as to any findings they may make, including special findings (see article 112.42 – Special Findings);
  4. the court shall close to determine its finding (in the case of General Courts Martial, see article 112.41 – Determination of Finding – General Court Martial); (18 July 2008)
  5. the court shall reopen and, where applicable, the legality of each finding made by the members of the court martial panel shall be verified by the judge (see article 112.43 – Verification by Military Judge of Legality of Proposed Finding by Court Martial Panel); and
  6. subject to the introduction of evidence pursuant to article 119.35 (Evidence of Mental Disorder If Accused Person Does Not Raise the Issue) and the decision of the court in respect of that evidence, the judge, or in the case of a General Court martial, the senior member, shall (18 July 2008)
    1. where offences have been charged in the alternative and the accused has been found guilty of one of the alternative charges, pronounce the finding of guilty on the charge and
      1. if, on any other alternative charge, the evidence proved the offence, direct that the proceedings be stayed on the charge (see article 112.80), or
      2. if, on any other alternative charge, the evidence does not prove the offence, pronounce a finding of not guilty on the charge, and
    2. in respect of all other charges, pronounce the finding on each charge.

(20) Where the accused has been found not guilty of all the charges before the court, the court shall terminate the proceedings in respect of the accused.

(21) After the court has pronounced its finding in respect of each charge, and after any adjournment under article 112.675 (Trial of Several Accused by Same Court Martial), the judge shall discharge the members of the court martial panel and determine sentence in accordance with Section 9.

(22) Subject to article 112.06 (Termination Procedure When Sentence Includes Detention or Imprisonment) and Section 9.1 (DNA Orders), the court shall terminate the proceedings in respect of the accused. (27 July 2000)

(23) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

(G) [P.C. 2000-1110 effective 27 July 2000; P.C. 2008-1319 effective 18 July 2008]

NOTES

(A) The appropriate form of address for a military judge presiding at a court martial is "Your Honour".

(B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essential ingredient such that the accused could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neither the credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has been established. The doctrine of reasonable doubt does not apply in respect of a prima facie case determination.

(C) [1 September 1999]

112.06 – TERMINATION PROCEDURE WHEN SENTENCE INCLUDES DETENTION OR IMPRISONMENT

(1) Immediately after imposing a sentence that includes a punishment of detention or imprisonment, the judge presiding at a court martial shall

  1. record in the minutes of proceedings the date and the time at which the sentence was imposed; and
  2. ask whether the accused has an Application for Release Pending Appeal pursuant to article 118.03 (Application to Court Martial for Hearing for Release Pending Appeal) to deliver at that time.

(2) Where the accused delivers an Application for Release Pending Appeal, the judge shall record the time and follow the procedure contained in paragraph (4) of article 118.03 and after disposing of the application shall terminate the proceedings in accordance with article 118.05 (Action on Termination of Proceedings).

(3) Where the accused does not deliver an Application for Release Pending Appeal immediately after sentencing, the judge shall

  1. advise the accused that, if it is intended to make an application for release pending appeal to the court, the accused must comply with article 118.03 within 24 hours;
  2. subject to an application pursuant to article 118.03, terminate the proceedings in respect of the accused; and
  3. remain available until the judge has ensured that the accused has not delivered an Application for Release Pending Appeal within 24 hours of sentencing in accordance with article 118.03.

(4) Where the accused delivers an Application for Release Pending Appeal in accordance with article 118.03 after proceedings are terminated pursuant to subparagraph (3)(b), the judge shall, upon receipt of the application, follow the procedure contained in paragraph (4) of article 118.03.

(5) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

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

112.07 – QUESTIONS OF LAW OR MIXED LAW AND FACT – GENERAL COURT MARTIAL

(1) Section 191 of the National Defence Act provides

"191. The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial." (18 July 2008)

(2) Where a question of law or of mixed law and fact arises, the judge appointed to preside at a court martial shall determine whether the issue should be heard and determined in the presence or in the absence of the members of the court martial panel.

(3) The members of the court martial panel shall retire where the judge determines that the issue should not be heard in their presence.

(4) The judge shall hear the evidence and argument relating to the issue, determine the issue, announce the ruling and give the reasons therefor.

(5) The trial shall then proceed in the presence of the members of the court martial panel.

(6) Except as provided in this article, the proceedings before the judge when sitting alone shall not be communicated to the members of the court martial panel until after the court has announced its finding.

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

[112.08 and 112.09 inclusive: not allocated]


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Section 3 – Admission to Courts Martial

112.10 – WHO MAY BE PRESENT AT A COURT MARTIAL

(1) Section 180 of the National Defence Act provides:

"180. (1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.

(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary

  1. in the interest of public safety, defence or public morals; or
  2. for the maintenance of order or the proper administration of military justice.

(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.

(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared."

(2) Where any order is made under subsection 180(2) of the National Defence Act, the order shall specify the ground on which it is made.

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

NOTES

(A) When the court martial has made an order under subsection 180(2) of the National Defence Act, members of the public remain excluded unless the court martial orders them to be re-admitted.

(B) When the court martial decides to exclude the public, the court may permit officers or non-commissioned members who have been detailed to attend for the purposes of instruction to remain in the courtroom.

(C) [1 September 1999]

112.11 – EXCLUSION OF PERSONS WHEN COURT IS CLOSED

When the court is closed, no person, other than the court, shall be present.

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

NOTE

A "closed court" should not be confused with a court sitting "in camera". A court is said to be "closed" when no person is present with the court during its deliberation on any matter. The court is "in camera" when its proceedings are not open to the public but the accused, the prosecutor and the representatives, if any, of the accused are present.

(C) [1 September 1999]

[112.12 and 112.13 inclusive: not allocated]


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Section 4 – Objections

112.14 – OBJECTIONS TO THE CONSTITUTION OF THE COURT MARTIAL

(1) Section 186 of the National Defence Act provides:

"186. (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.

(2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations."

(2) Where the accused or prosecutor objects to the judge or any member of the court martial panel, witnesses may be called:

  1. in support of the objection by the party making the objection;
  2. in rebuttal of the objection by the other party; and
  3. by the court if it desires to hear further evidence.

(3) After witnesses, if any, have been heard, addresses may be made to the court first by the party making the objection and then by the other party, and the party making the objection may reply to any address made by the other party.

(4) An objection to the judge shall be heard and determined by the judge in the absence of the members of the court martial panel and prior to any objection to the members.

(5) When the judge has made a decision in respect of the objection, the judge shall announce the decision in the presence of the members of the court martial panel.

(6) Where the judge allows the objection, the proceedings shall be adjourned until a replacement is appointed.

(7) Where there is an objection with respect to a member of the court martial panel,

  1. the court shall hear any evidence and argument with respect to the objection;
  2. the judge shall address the members of the court martial panel with respect to the objection; and
  3. the court shall close for the other members of the court martial panel to make a decision in respect of the objection.

(8) The member, in respect of whom an objection has been made, shall not be present during the deliberations of the court martial panel.

(9) The decision in respect of the objection shall be made by the other members of the panel, on the basis of a majority vote, with the members voting orally in succession beginning with the member lowest in rank.

(10) In the case of an equality of votes, the senior member shall have a second or casting vote in respect of an objection to any of the other members, and the next senior member shall have a second or casting vote in respect of an objection to the senior member.

(11) When the decision in respect of the objection has been made, the court shall reopen and the senior member shall announce the decision.

(12) Where an objection is allowed in respect of the senior member, the proceedings shall be adjourned until a replacement is appointed (see article 111.03 – Procedure for Appointment of Court Martial Members).

(13) Where an objection is allowed in respect of a member of the court martial panel other than the senior member,

  1. the judge shall designate an alternate to replace the member; and
  2. if there is no alternate to replace the member, the court shall adjourn until sufficient replacements are appointed (see article 111.03).

(14) The prosecutor and the accused may object to any replacement appointed.

(15) An objection under this article and the manner in which it was disposed of shall be recorded in the minutes of the proceedings.

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

NOTE

Where under article 110.09 (Joint Trials) a court martial is convened to try persons jointly, each accused has the right to object under this article and, where an objection by any of the accused is allowed, the officer or non-commissioned member in respect of whom the objection was allowed must be replaced.

(C) [1 September 1999]

112.15 – OBJECTION TO INTERPRETER

(1) The prosecutor and the accused may object to an interpreter on the ground of partiality or lack of competence.

(2) Where the accused or prosecutor objects to the interpreter, witnesses may be called:

  1. in support of the objection by the party making the objection;
  2. in rebuttal of the objection by the other party; and
  3. by the court, if it desires to hear further evidence.

(3) After witnesses, if any, have been heard, addresses may be made to the court first by the party making the objection and then by the other party, and the party making the objection may reply to any address made by the other party.

(4) Upon conclusion of the addresses, the judge shall close to make a decision with respect to the objection.

(5) The court shall reopen and the judge shall announce the decision.

(6) Where an objection to an interpreter is allowed, the court may appoint another interpreter.

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


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Section 5 – Oaths

112.16 – OATH TO BE TAKEN BY JUDGE PRESIDING AT COURT MARTIAL

The oath to be taken by the judge presiding at a court martial shall be in the following form:

"I .......... solemnly and sincerely promise and swear that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. So help me God."

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2013-1068 effective 18 October 2013]

NOTE

For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).

(C) [1 September 1999]

112.17 – OATH TO BE TAKEN BY MEMBERS OF COURT MARTIAL PANEL

The oath to be taken by the members of a court martial panel shall be in the following form:

"I swear that I will duly carry out the duties of a member of the court martial panel according to law, without partiality, favour or affection and make true findings according to the evidence; and I do further swear that I will not, at any time whatsoever, disclose the vote or opinion of any particular member of this court martial panel, unless thereunto required in due course of law. So help me God."

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

NOTE

For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).

(C) [1 September 1999]

112.18 – OATH TO BE TAKEN BY COURT REPORTER

The oath to be taken by a court reporter shall be in the following form:

"I swear that I will, to the best of my ability, truly record the evidence to be given before this court martial and such other matters as may be required, and will deliver to the court a true transcript of the same. So help me God."

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

NOTE

For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).

(C) [1 September 1999]

112.19 – OATH TO BE TAKEN BY INTERPRETER

The oath to be taken by an interpreter shall be in the following form:

"I swear that I will, to the best of my ability truly interpret and translate as I shall be required to do. So help me God."

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

NOTE

For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).

(C) [1 September 1999]

112.20 – OATH TO BE TAKEN BY WITNESSES

The oath to be taken by a witness shall be administered by the judge and shall be in the following form:

"I swear that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. So help me God."

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

NOTE

For making a solemn affirmation in lieu of an oath, see article 112.21 (Affirmation in Lieu of Oath).

(C) [1 September 1999]

112.21 – AFFIRMATION IN LIEU OF OATH

(1) Section 251.1 of the National Defence Act provides:

"251.1 (1) A person who is required to take an oath under this Act may, instead of taking an oath, make a solemn affirmation.

(2) A solemn affirmation has the same force and effect as an oath.

(3) An oath or a solemn affirmation under this Act has, in respect of any prosecution under the Criminal Code, the same force and effect as an oath taken before a civil court."

(2) The form of a solemn affirmation shall be as prescribed for the appropriate oath and adapted as follows:

  1. in the case of an oath taken in accordance with article 112.16, the words "and affirm" are to be substituted for the words "and swear" and the words "So help me God" are to be omitted; and
  2. in all other cases, the words "I solemnly affirm" are to be substituted for the words "I swear" and the words "So help me God" are to be omitted.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2013-1068 effective 18 October 2013 – (2)]

[112.22 and 112.23 inclusive : not allocated]


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Section 6 – Pleas

112.24 – PLEAS IN BAR OF TRIAL

(1) An accused may plead in bar of trial that:

  1. the court has no jurisdiction;
  2. the charge before the court or a substantially similar charge arising out of the facts that gave rise to the charge before the court was dismissed;
  3. the accused was previously found guilty or not guilty of the charge before the court or a substantially similar charge arising out of the facts that gave rise to the charge before the court;
  4. the accused is unfit to stand trial on account of mental disorder (see Chapter 119 – Mental Disorder); or
  5. the charge does not disclose a service offence.

(2) The accused may make any statement that is pertinent to the plea in bar of trial and witnesses may be called (see article 112.31 – Examination of Witnesses):

  1. by the accused, to support the plea;
  2. by the prosecutor, in rebuttal of the plea; and
  3. by the court, if it desires to hear any further evidence.

(3) After witnesses, if any, have been heard, addresses may be made to the court first by the accused and then by the prosecutor, and the accused has the right to make an address in reply to any address made by the prosecutor.

(4) Upon conclusion of the addresses, the court shall close to deal with the plea in bar of trial.

(5) Where a decision in respect of the plea has been made, the court shall reopen and inform the accused of the decision.

(6) Where a plea in bar of trial has been allowed to all charges, the court shall terminate the proceedings.

(7) The Director of Military Prosecutions shall cause the referral authority (see article 109.03 – Application to Referral Authority for Disposal of a Charge) and the accused's commanding officer to be informed of the outcome of the trial.

(8) Where a plea in bar of trial has been allowed but not to all charges, the court shall:

  1. terminate the proceedings in respect of any charge to which a plea has been allowed; and
  2. proceed with the trial of any charge to which a plea has not been allowed.

(9) At the conclusion of the trial, the Director of Military Prosecutions shall cause the referral authority (see article 109.03) and the accused's commanding officer to be informed as to any charge in respect of which the plea has been allowed.

(10) Where a plea in bar of trial has been made, the plea and the decision in respect of the plea shall be recorded in the minutes of the proceedings.

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

NOTE

The power of commanding officers and superior commanders to dismiss a charge was removed from the National Defence Act by amendments in An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35, effective September 1, 1999. A dismissal of a charge before that date may still be pleaded in bar of trial by an accused.

(C) [1 September 1999]

112.25 – ACCEPTANCE OF PLEA OF GUILTY

(1) Where the accused pleads guilty to a charge, the judge shall:

  1. explain the offence to which the accused has pleaded guilty and inform the accused of the maximum punishment that the court can impose;
  2. ask the accused whether the statement of particulars in respect of the offence to which the accused has pleaded guilty is accurate; and
  3. explain the difference in the procedure to be followed if the plea is accepted.

(2) The prosecutor shall inform the court whether the prosecutor concurs in the acceptance of the plea of guilty as made where the accused pleads guilty

  1. to an alternative charge that is less serious than any other and the accused has pleaded not guilty to the more serious alternative charge;
  2. not to the offence charged but to a related or less serious offence prescribed in sections 133 to 136 of the National Defence Act (see article 103.62 – Related or Less Serious Offences);
  3. not to the offence charged but to an attempt to commit that offence (see article 103.63 – Attempt to Commit Offence); or
  4. to the offence charged or to a related or less serious offence on facts that differ materially from the facts alleged in the statement of particulars in the charge sheet but are nevertheless sufficient to establish the offence to which the accused has pleaded guilty.

(3) Where the prosecutor concurs in the acceptance of a plea of guilty, the court may accept the plea of guilty and record it accordingly.

(4) Where there are alternative charges, a plea of guilty shall not be accepted to more than one of those charges.

(5) The court may accept and record a plea of guilty after paragraph (1) has been complied with, unless it appears to the court that:

  1. the accused did not understand the nature or gravity of the charge to which the accused pleaded guilty;
  2. the statement of particulars in the charge sheet is in some material respect disputed by the accused; or
  3. for any other reason the interests of justice make it expedient that a plea of guilty should not be accepted.

(6) Where, under paragraph (2), the prosecutor does not concur in the acceptance of a plea of guilty, the trial shall proceed as if the accused had initially pleaded not guilty.

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

(C) [1 June 2014 – (2)(b) and (2)(c)]

112.26 – CHANGE OF PLEA DURING TRIAL

(1) Where the court has accepted a plea of guilty under article 112.25 (Acceptance of Plea of Guilty), it shall, at any time during the trial and if it considers the interests of justice so require, direct that a plea of guilty be altered to a plea of not guilty and proceed as if a plea of not guilty had originally been entered.

(2) At any time during trial before the court has closed to consider its finding, the accused may, with the permission of the court, change a plea of not guilty to a plea of guilty.

(3) Where the court permits a change of plea under paragraph (2), the court shall comply with the provisions of article 112.25.

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

[112.27: not allocated]


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Section 7 – Opening Addresses and Evidence of Witnesses

112.28 – OPENING ADDRESS BY PROSECUTOR

The opening address by the prosecutor:

  1. shall not contain any assertion that the prosecutor does not intend to substantiate by evidence;
  2. should not be unnecessarily detailed; and
  3. should contain a brief statement of the substance of the charge, the circumstances in which it is alleged the offence was committed and the nature and general effect of the evidence that the prosecutor proposes to call in support of the charge.

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

112.29 – OPENING ADDRESS BY ACCUSED

The opening address by the accused:

  1. shall not contain any assertion that the accused does not intend to substantiate by evidence;
  2. should not be unnecessarily detailed; and
  3. should contain a brief statement of the nature and general effect of the evidence that the accused proposes to call for the defence.

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

[112.30: not allocated]

112.31 – EXAMINATION OF WITNESSES

(1) The prosecutor and the accused may call witnesses.

(2) The prosecutor and the accused may cross-examine or apply to postpone the cross-examination of each witness for the opposing party.

(3) If a witness has been cross-examined, the party calling the witness may re-examine that witness.

(4) The judge and, with the permission of the judge, any member of the court martial panel may put further questions to a witness, during or at the conclusion of the examination of the witness.

(5) If a witness has been questioned by the judge or a member of the court martial panel, the prosecutor and the accused may, with the permission of the judge, ask the witness any question, relative to the answers, that the judge considers proper.

(6) Subject to paragraph (7), a witness shall answer each question that the witness is asked.

(7) Where there is an objection to a question or the witness claims privilege, the witness:

  1. shall not answer the question until the decision of the judge as to the objection or claim has been announced; and
  2. after the announcement of the decision by the judge, shall answer the question unless the objection or the claim has been allowed.

(8) The court may direct the witness to withdraw while it resolves any issue concerning the witness's evidence.

(9) Where a question to a witness is disallowed, the prosecutor and the accused shall refrain from further examination or comment on the matter.

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

NOTES

(A) For other rules relating to the examination of witnesses, see the Military Rules of Evidence (QR&O Volume IV, Appendix 1.3).

(B) Failure to answer questions when required to do so is an offence under sections 118 and 302 of the National Defence Act. A witness who fails to answer a question may be punished for contempt by the court under section 179 of the National Defence Act.

(C) Any person giving evidence before a court martial may be heard in the official language of the person's choice. The right of a person to be heard in the official language of the person's choice should not be confused with the right of a witness to an interpreter at a court martial, under section 14 of the Canadian Charter of Rights and Freedoms, where that witness does not understand or speak the language in which the proceedings are conducted or is deaf.

(C) [1 September 1999]

112.32 – POWER OF COURT MARTIAL TO CALL AND RECALL WITNESSES

(1) The court martial may, at any time during the presentation of the case for the prosecution and the case for the defence, or at any other time before a finding is made:

  1. recall and question any witness; and
  2. call and question any further witnesses.

(2) Where a witness has been called or recalled, the prosecutor and the accused may, with the permission of the judge, ask the witness any questions, relative to the answers, that the judge considers proper.

(3) Where a witness has been called or recalled after any closing address, the prosecutor and the accused shall be given the opportunity to make a further closing address in respect of the evidence adduced.

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

112.33 – WITNESS TESTIMONY OUTSIDE COURT ROOM – SPECIAL CASES

(1) In this article, "complainant" means the victim of an alleged offence.

(2) This article applies where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 of the Criminal Code, punishable under section 130 of the National Defence Act, and the complainant or any witness at the time of the trial is under the age of 18 years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability.

(3) Where the judge is of the opinion that the exclusion of the complainant or witness from the presence of the accused or from the court room is necessary to obtain a full and candid account of the acts complained of from the complainant or witness, the judge may order that the complainant or witness testify:

  1. outside the court room, but in the presence of the prosecutor and legal counsel for the accused; or
  2. behind a screen or other device that would allow the complainant not to see the accused.

(4) Where the judge is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under paragraph (3) should be made in respect of that complainant or witness, the judge shall order that the complainant or witness testify pursuant to that paragraph.

(5) A complainant or witness shall not testify outside the court room pursuant to subparagraph (3)(a) unless:

  1. arrangements are made for the accused and the court to visually and orally follow the testimony of the complainant or witness and for the prosecutor and legal counsel for the accused to engage in simultaneous visual and oral communication with the court; and
  2. the accused is permitted to communicate with legal counsel while following the testimony.

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

[112.34 to 112.39 inclusive: not allocated]


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Section 8 – Findings

112.40 – DIRECTIONS RESPECTING FINDINGS

(1) Subject to paragraph (2), article 112.42 (Special Findings), article 119.11 (Where Accused is Found Fit to Stand Trial), article 119.12 (Where Accused is Found Unfit to Stand Trial) and article 119.37 (Finding of Not Responsible on Account of Mental Disorder), the court shall find the accused not guilty on each charge, unless it concludes that the evidence proves beyond reasonable doubt that the accused:

  1. committed the offence charged;
  2. attempted to commit the offence charged (see article 103.63 – Attempt to Commit Offence); or
  3. committed a related or less serious offence prescribed in sections 133 to 136 of the National Defence Act (see article 103.62 – Related or Less Serious Offences).

(2) Where offences have been charged in the alternative and the court finds the accused guilty of one of the alternative charges, the court shall:

  1. if, on any other alternative charge, the evidence proved the offence, direct that the proceedings be stayed on the charge (see article 112.80 – Effect of a Stay of Proceedings); or
  2. if, on any other alternative charge, the evidence does not prove the offence, pronounce a finding of not guilty on the charge.

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

NOTES

(A) Where there are four offences charged and no charges are in the alternative, a finding might, for example, be in one of the following forms:

"The court finds the accused not guilty on the first charge and guilty on the second to fourth charges inclusive."

"The court finds the accused not guilty on all charges."

"The court finds the accused guilty on all charges."

"The court finds the accused guilty on the first and third charges and not guilty on the second and fourth charges."

(B) The following example shows the possible findings on alternative charges. The charges may be assumed to have been:

First charge (Alternative to Second Charge) – A charge under section 95 of the National Defence Act of ill-treating a subordinate.

Second charge (Alternative to First Charge) – A charge under section 129 of the National Defence Act of conduct to the prejudice of good order and discipline.

The finding on these charges might be in any one of the following forms:

"The court finds the accused not guilty on both charges."

"The court finds the accused guilty on the first charge and directs that the proceedings on the second charge be stayed."

"The court finds the accused guilty on the first charge and finds the accused not guilty on the second charge."

"The court finds the accused not guilty on the first charge and finds the accused guilty on the second charge."

(C) If the accused were charged with an offence under section 114 of the National Defence Act of stealing $500 and the court concluded that the accused had stolen only $250, the form of special finding (see article 112.42 – Special Findings) applicable would be:

"The court finds the accused guilty of the charge with the special finding that he stole $250 and not $500."

(D) An example of the finding of guilty on a related or less serious offence is as follows:

The accused is charged first under section 88 of the National Defence Act with desertion and secondly under Section 85 of that Act with using threatening language towards a superior officer.

The finding of the court might be:

"The court finds the accused guilty of the less serious offence of absence without leave on the first charge and guilty of the related offence of behaving with contempt toward a superior officer on the second charge."

(E) Where the accused is found guilty of attempting to commit the offence charged, the form of the finding in a theft case would be:

"The court finds the accused guilty of attempting to steal."

(F) Where the issue of whether the accused is unfit to stand trial is tried and determined (see section 2 (Fitness to Stand Trial) of Chapter 119 – Mental Disorder), the form of finding might be in one of the following forms:

"The court finds that the accused is fit to stand trial."

"The court finds that the accused is unfit to stand trial."

(G) Where evidence is given that the accused was suffering from a mental disorder at the time the offence is alleged to have been committed (see section 5 (Mental Disorder When Offence Committed) of Chapter 119 – Mental Disorder), the form of finding might be in one of the following forms:

"The court finds that the accused committed the act (or made the omission) that formed the basis of the offence charged but was at the time of the offence suffering from a mental disorder so as to be exempt from responsibility."

"The court finds that the accused was suffering from a mental disorder at the time the offence was committed but nonetheless finds him not guilty otherwise than by reasons of mental disorder."

"The court finds the accused guilty of the charge."

"The court finds that the accused was not suffering from a mental disorder at the time the alleged offence was committed and finds him not guilty of the charge."

(C) [1 September 1999]

112.41 – DETERMINATION OF FINDING – GENERAL COURT MARTIAL

(1) Sections 192 and 192.1 of the National Defence Act provide (18 July 2008)

"192. (1) The members of the panel determine the court martial's finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact. (18 July 2008)

(2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote. (18 July 2008)

192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel. (18 July 2008)

(2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced." (18 July 2008)

(2) The members of the court martial panel shall vote orally in succession, beginning with the member lowest in rank.

(3) At any time during deliberations to determine the finding, the members of the court martial panel may, in open court, request

  1. the judge to give further instructions upon the law applicable; and
  2. any portion of the recorded evidence to be read aloud.

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

112.42 – SPECIAL FINDINGS

(1) Section 138 of the National Defence Act provides:

"138. Where a service tribunal concludes that

  1. the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and
  2. the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,

the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars."

(2) Where the accused is found guilty of an attempt to commit the offence charged (see article 103.63 – Attempt to Commit Offence), or of a related or less serious offence (see article 103.62 – Related or Less Serious Offences), the finding on that charge shall include a statement of the offence of which the accused has been found guilty.

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

NOTE

For the form of findings under this article see the notes to article 112.40 (Directions Respecting Findings).

(C) [1 September 1999]

112.43 – VERIFICATION BY MILITARY JUDGE OF LEGALITY OF PROPOSED FINDING BY COURT MARTIAL PANEL

(1) The court martial panel shall, in open court immediately prior to pronouncing a finding, inform the judge of the proposed finding.

(2) The judge shall review the finding and inform the court martial panel whether or not it is legal.

(3) The court martial panel shall not pronounce the proposed finding unless the judge informs the court martial panel that it is legal.

(4) Where the judge informs the members of the court martial panel that the proposed finding is illegal, the judge shall provide any further instructions that the judge considers appropriate and the members shall close to reconsider the finding.

(5) When the members of the court martial panel have reconsidered the finding, the court shall reopen and proceedings shall continue in accordance with paragraphs (1) to (4) until the judge informs the court martial panel that the proposed finding is legal.

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

[112.44 to 112.46 inclusive: not allocated]


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Section 9 – Sentence

112.47– MILITARY JUDGE DETERMINES SENTENCE

Section 193 of the National Defence Act provides

"193. The military judge presiding at a General Court Martial determines the sentence."

(C) [18 July 2008]

112.48 – SENTENCING

(1) Section 148 of the National Defence Act provides:

"148. Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it."

(2) In determining sentence, the court shall:

  1. take into consideration any indirect consequence of the finding or of the sentence; and
  2. impose a sentence commensurate with the gravity of the offence and the previous character of the offender.

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

NOTES

(A) For the punishments that may be imposed by a service tribunal, see Chapter 104 (Punishments and Sentences).

(B) Where a person is already under an unexpired sentence that has been suspended, see article 104.16 (Incarceration Under More Than One Sentence).

(C) [1 September 1999]

112.49 – SIMILAR OFFENCE MAY BE ADMITTED AND DEALT WITH

(1) Section 194 of the National Defence Act provides:

"194. (1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

(2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty."

(2) The court shall record in the minutes of the proceedings whether it has acceded to or rejected a request made under subsection 194(1) of the National Defence Act.

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

112.50 – RECOMMENDATION BY COURT MARTIAL PANEL – PAROLE ELIGIBILITY – MURDER

(1) If a court martial panel finds an accused guilty of murder and the military judge asks the members of the panel if they wish to make a recommendation with respect to the parole eligibility of the accused in accordance with section 745.2, 745.21 or 745.3 of the Criminal Code as made applicable by subsection 226.1(2) of the National Defence Act, the court is to close to allow the members to decide whether or not they wish to make such a recommendation and, if in the affirmative, the substance of the recommendation.

(2) The decision as to whether or not to make a recommendation as well as the decision as to its substance, if applicable, shall be made by the members of the court martial panel on the basis of a majority vote, with the members voting orally in succession beginning with the member lowest in rank.

(3) When the decision or decisions in respect of the recommendation have been made, the court is to reopen and the senior member shall announce whether the court martial panel has decided to make a recommendation and, if so, the substance of the recommendation.

(G) [P.C. 1999-1305 effective 1 September 1999;P.C. 2013-0613 effective 14 June 2013; P.C. 2014-0575 effective 1 June 2014 – (1)]

NOTE

Subsection 745.51(1) of the Criminal Code, as made applicable by subsection 226.1(2) of the National Defence Act, provides that, if a court martial panel finds an accused guilty of murder and that accused has previously been convicted of one or more other murders, the military judge may order that the periods without eligibility for parole be served consecutively for each murder conviction.

(C) [14 June 2013; 1 June 2014]

112.51 – SENTENCING PROCEDURE

(1) The prosecutor shall, so far as is practical, cause the court to be informed of

  1. the age and particulars of service of the accused;
  2. the decorations and record of distinguished service, if any, of the accused;
  3. the length of time spent by the accused in custody awaiting trial; and
  4. any previous convictions by a service tribunal or civil court.

(2) Subject to article 112.52 (Disputed Facts – Duty of Court), the prosecutor may cause the court to be informed of the particulars of the accused prescribed in paragraph (1) by reading and submitting to the court a document signed by or on behalf of the commanding officer or by or on behalf of the Chief of the Defence Staff and containing those particulars (see article 111.17 – Documents Provided to the Prosecutor).

(3) Subject to article 112.52, the prosecutor shall inform the court of the circumstances of any offence to which a plea of guilty has been accepted.

(4) The prosecutor, followed by the accused, may call evidence that is relevant to sentence (see article 112.31 – Examination of Witnesses).

(5) The prosecutor may, with the permission of the court, call evidence in rebuttal of any evidence called by the accused.

(6) The prosecutor, followed by the accused, may address the court as to the appropriate sentence to be imposed.

(7) The court shall determine and pronounce the sentence (see articles 112.47 – Military Judge Determines Sentence and 112.48 – Sentencing).

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

112.52 – DISPUTED FACTS – DUTY OF COURT

Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at trial.

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

112.53 – DISPUTED FACTS – STANDARD OF PROOF

Where there is a dispute with respect to any fact that is relevant to the determination of a sentence

  1. subject to subparagraph (b), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
  2. the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the accused.

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

112.54 – PROVEN FACTS – GENERAL COURT MARTIAL

In the case of a General Court Martial, the court (18 July 2008)

  1. shall accept as proven all facts, express or implied, that are essential to the court martial panel's finding of guilty; and
  2. may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

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

112.55 – COURT MAY ORDER PRODUCTION OF EVIDENCE

The court may, on its own motion, and after hearing argument from the prosecutor and the accused, require the production of any evidence or compel the appearance of any person if it would assist the court in determining the appropriate sentence.

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


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Section 9.1 – DNA Orders

112.56 – DNA ORDER

A DNA order for the purpose of section 196.14 of the National Defence Act shall be in Form A, B or C as applicable:

Form A

ORDER AUTHORIZING THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

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

Whereas (service number and rank (if applicable) and name of offender) has been found guilty under the National Defence Act of (offence), which, on the day on which the offender was sentenced, was a primary designated offence, within the meaning of section 196.11 of that Act;

Therefore, you are authorized to take or cause to be taken from (service number and rank (if applicable) and name of offender) the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances: _____

Dated on (day/month/year) at (place of issuance).

(signature of presiding military judge)

(rank and name of presiding military judge)

(General or Standing) Court Martial

Form B

ORDER AUTHORIZING THE TAKING OF SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

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

Whereas (service number and rank (if applicable) and name of offender), in this order called the "offender",

  1. has been found not responsible on account of mental disorder for (offence), which on the day on which the finding was made, was a primary designated offence within the meaning of section 196.11 of the National Defence Act; or
  2. has been found guilty under the National Defence Act or found not responsible on account of mental disorder for (offence), which on the day on which the offender was sentenced or the finding was made, was a secondary designated offence within the meaning of section 196.11 of the National Defence Act;

Whereas I have considered the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that this order would have on the offender's privacy and security of the person;

And whereas I am satisfied that it is in the best interests of the administration of military justice to make this order;

Therefore, you are authorized to take or cause to be taken from service number and rank (if applicable) and name of offender) the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and provided that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated on (day/month/year) at (place of issuance).

(signature of presiding military judge)

(rank and name of presiding military judge)

(General or Standing) Court Martial

Form C

ORDER TO A PERSON TO HAVE SAMPLES OF BODILY SUBSTANCES TAKEN FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

To (service number and rank (if applicable) and name of offender):

Whereas an order has been made under section 196.14 of the National Defence Act to take from you the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;

This is therefore to command you, in Her Majesty's name, to report on (day/month/year), at (hours), at (place), for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 196.2(1) of the National Defence Act. A peace officer, or a person who is acting under a peace officer's direction, who takes the samples of bodily substances may use as much force as necessary to do so.

You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 196.161(1) of the National Defence Act. You are also warned that failure to comply with this order, without reasonable excuse, is an offence under subsection 119.2(1) of that Act.

Subsection 119.2(1) of the National Defence Act provides as follows:

"119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

Subsection 196.161(1) of the National Defence Act provides as follows:

"196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken."

Dated on (day/month/year) at (place of issuance).

(signature of presiding military judge)

(rank and name of presiding military judge)

(General or Standing) Court Martial

(G) [P.C. 2000-1110 effective 27 July 2000 – Forms A and B; P.C. 2009-0430 effective 26 March 2009]

NOTE

The form of the written report that a peace officer makes after taking samples of bodily substances or directing the taking of them, in the execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or an authorization under section 196.24 of the National Defence Act, is prescribed in article 106.12 (Report by Peace Officer).

(C) [26 March 2009]

112.57 – AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES

(1) An ex parte application for the purpose of subsection 196.24(1) of the National Defence Act shall be in the following form:

APPLICATION FOR AN AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

I, (rank and name), a peace officer of (base, unit or territorial division, apply for an authorization to take additional samples of bodily substances for the purpose of forensic DNA analysis.

Whereas samples of bodily substances were taken from (service number and rank (if applicable) and name of offender) for the purpose of forensic DNA analysis under an order made under section 196.14 of the National Defence Act (attach a copy of the order);

And whereas on (day/month/year) it was determined that:

  1. a DNA profile could not be derived from the samples for the following reasons:
  2. the bodily substances and information required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons:

Therefore, I request that an authorization be granted under subsection 196.24(1) of the National Defence Act to the peace officers of (base, unit or territorial division) to take from (service number and rank (if applicable) and name of offender) the number of additional samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of that Act, and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.

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

(signature of applicant)

(rank and name of applicant)

(2) An authorization for the purpose of subsection 196.24(1) of the National Defence Act shall be in the following form:

AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

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

Whereas samples of bodily substances were taken from (service number and rank (if applicable) and name of offender) for the purpose of forensic DNA analysis under an order made under section 196.14 or 196.15 of the National Defence Act;

Whereas on (day/month/year) it was determined that:

  1. a DNA profile could not be derived from the samples for the following reasons:
  2. the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons: ______

And whereas (rank and name), a peace officer of (base, unit or territorial division), has applied for an authorization to take the number of additional samples of bodily substances from (service number and rank (if applicable) and name of offender) that is reasonably required for the purpose of forensic DNA analysis by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act;

Therefore, you are authorized to take those additional samples, or cause them to be taken, from (service number and rank (if applicable) and name of offender), provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.

This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

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

((signature of military judge)

(rank and name of military judge)

(3) An order for the purpose of subsection 196.24(4) of the National Defence Act shall be in the following form:

ORDER TO A PERSON TO HAVE ADDITIONAL SAMPLES OF BODILY SUBSTANCES TAKEN FOR THE PURPOSE OF FORENSIC DNA ANALYSIS

To: (service number and rank (if applicable) and name of offender)

Whereas an authorization has been granted under subsection 196.24(1) of the National Defence Act to take from you the number of additional samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;

This is therefore to command you, in Her Majesty's name, to appear on (day/month/year), at (hours), at (place), for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 196.2(1) of the National Defence Act. A peace officer, or a person who is acting under a peace officer's direction, who takes the samples of bodily substances may use as much force as necessary to do so.

You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 196.161(1) of the National Defence Act. You are also warned that failure to comply, without reasonable excuse, is an offence under subsection 119.2(1) of that Act.

Subsection 119.2(1) of the National Defence Act provides as follows:

"119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

Subsection 196.161(1) of the National Defence Act provides as follows:

"196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples to be taken."

Dated on (day/month/year) at (place of issuance).

(signature of military judge)

(rank and name of military judge)

(G) [P.C. 2000-1110 effective 27 July 2000 – (1) and (2); P.C. 2009-0430 effective 26 March 2009]

NOTE

The form of the written report that a peace officer makes after taking samples of bodily substances or directing the taking of them, in the execution of an authorization under section 196.24 of the National Defence Act, is prescribed in article 106.12 (Report by Peace Officer).

(C) [27 July 2000]


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Section 9.2 – Order to Comply with the Sex Offender Information Registration Act

112.58 – ORDER TO COMPLY WITH THE SEX OFFENDER INFORMATION REGISTRATION ACT

An order for the purpose of subsection 227.01(1), (2) or (3) of the National Defence Act shall be in the following form:

ORDER TO COMPLY WITH THE SEX OFFENDER INFORMATION REGISTRATION ACT

To (service number and rank (if applicable) and name of person), (address), (date of birth), (sex):

You have been convicted of or found not responsible on account of mental disorder for (insert description of offence), a designated offence (or if more than one offence, designated offences) within the meaning of the definition "designated offence" in section 227 of the National Defence Act.

Therefore, it is ordered:

  1. You must report for the first time to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under subsection 4(1) of that Act.
  2. You must subsequently report to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under section 4.1 or 4.3 of that Act, for a period of ...... years after this order is made (or if paragraph 227.02(2)(c) or any of subsections 227.02(2.1) to (5) of the National Defence Act applies, for life).
  3. Information relating to you will be collected under sections 5 and 6 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.
  4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.
  5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act or, if applicable, the Canadian Forces Provost Marshal, to correct the information.
  6. You have the right to appeal this order.
  7. You have the right to apply to a court martial or, if applicable, a court under section 490.015 of the Criminal Code to terminate this order, and the right to appeal any decision of a court martial that the Chief Military Judge causes to be convened to try the issue or any decision of the court.
  8. If you are found to have contravened this order, you may be subject to punishment under the National Defence Act or the Criminal Code.
  9. If you are found to have provided false or misleading information, you may be subject to punishment under the National Defence Act or the Criminal Code.

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. 2008-1507 effective 12 September 2008; P.C. 2011-1111 effective 29 September 2011]

NOTE

For the purpose of section 7.1 of the Sex Offender Information Registration Act, the following places have been designated as registration centres by the Sex Offender Information Registration Regulations (Canadian Forces):

  1. in Canada, the Office of the Provost Marshal and the place located on each defence establishment set out in the schedule to the Regulations that serves as the station of military police; and
  2. outside Canada, each place that serves as the station of military police that carries out law enforcement operations.

An officer or non-commissioned member of the Regular Force or the Primary Reserve or any other person subject to the Code of Service Discipline, who is subject to an order to comply with the Sex Offender Information Registration Act, is required to report to a registration centre designated in the Sex Offender Information Registration Regulations (Canadian Forces).

(C) [12 September 2008]


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Section 10 – Procedure Generally

112.59 – AMENDMENT OF CONVENING ORDER AND CHARGE SHEET

(1) Section 188 of the National Defence Act provides:

"188. (1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person's defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.

(2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.

(3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet."

(2) A court martial may, at any time during a trial, amend the convening order or charge sheet where it appears to the court that there is:

  1. an error or omission in the name or description of the accused or a person named in the convening order; or
  2. an error or omission of a clerical nature.

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

112.60 – PROCEDURE ON INCIDENTAL ISSUES

Where the prosecutor or the accused raises an issue or matter for which no specific procedure is provided, the other party has the right to respond, and the person raising the issue or matter has the right to reply.

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

112.61 – PROCEDURE ON VOIR DIRE

(1) A voir dire may be used to determine the admissibility of any evidence.

(2) The procedure in a voir dire shall be:

  1. the party seeking to establish the admissibility of the evidence may present evidence as the party sees fit and witnesses may be called (see article 112.31 – Examination of Witnesses);
  2. the other party may present evidence as that party sees fit and witnesses may be called;
  3. the party seeking to establish the admissibility of the evidence, and then the other party, may make a closing address; and
  4. the court shall determine the admissibility of the evidence and announce its decision.

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

112.62 – ADJOURNMENT

(1) Section 189 of the National Defence Act provides:

"189. A court martial may adjourn its proceedings whenever the court martial considers adjournment desirable."

(2) When the court martial adjourns, the judge shall, if practical, set a date and time at which it will re-assemble.

(3) A closed court martial shall reopen before adjourning.

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

112.63 – VIEW BY COURT MARTIAL

(1) Section 190 of the National Defence Act provides:

"190. A court martial may view any place, thing or person."

(2) Subject to article 112.10 (Who May be Present at a Court Martial), any proceedings during a view must be in open court.

(3) Any evidence taken during the course of a view must be recorded in the minutes of the proceedings.

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

112.64 – PRELIMINARY PROCEEDINGS – VIDEO LINK

(1) Where the prosecutor and the accused agree, and the judge so orders, the accused, the prosecutor or the judge may appear at preliminary proceedings (see article 112.03 – Preliminary Proceedings) by any means that allow the judge, the prosecutor and the accused to engage in simultaneous visual and oral communication.

(2) Paragraph (1) does not apply in respect of an accused's plea of guilty at preliminary proceedings.

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

112.65 – APPEARANCE OF WITNESSES – VIDEO LINK

(1) Where the prosecutor and the accused agree and the judge so orders, the evidence of a witness may be taken at any time during court martial proceedings by any means that allow the witness to testify in a location other than the courtroom and to engage in simultaneous visual and oral communication with the court, the prosecutor and the accused.

(2) The taking of evidence may include the examination of documents and filing of exhibits if suitable arrangements have been made with the judge for the receipt and filing of original documents or exhibits.

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

112.655 – DISSOLUTION OF COURTS MARTIAL

A court martial shall be deemed to be dissolved when it has terminated its proceedings in respect of all accused.

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

NOTE

A court martial may also be dissolved in the case of the death or disability of a member of the court martial panel or an accused (see section 196.1 of the National Defence Act).

(C) [1 September 1999]

112.66 – MINUTES OF PROCEEDINGS

(1) A primary and back-up recording shall be made of all court martial proceedings in open court on audio tape, on any other electronic recording device or by any other means determined to be appropriate by the presiding judge.

(2) As soon as practical after the proceedings of a court martial are terminated, the minutes of the proceedings shall be prepared.

(3) The minutes of the proceedings shall include:

  1. a transcript of the recording of the proceedings; and
  2. where practical, a copy of any exhibit accepted by the court martial.

(4) The minutes of the proceedings shall be dated and signed by:

  1. the court reporter, to certify that the minutes of the proceedings accurately record the proceedings of the court martial; and
  2. the judge, to certify that the minutes accurately reflect
    1. any address, direction or decision by the judge; and
    2. the findings, the sentence, and the date and time that the sentence was imposed.

(5) A copy of the minutes of the proceedings shall be forwarded to the Judge Advocate General.

(6) The recording and the minutes of the proceedings of the court martial shall be retained until the final disposition of any appeal, or for such longer period as the Chief Military Judge may consider appropriate (see article 101.17 – Other Duties of Court Martial Administrator).

(7) The exhibits accepted by a court martial shall be retained until final disposition of any appeal, unless they are disposed of in accordance with article 101.08 (Restitution of Property and Return of Exhibits).

(8) In the case of total or partial loss of the original minutes of proceedings, a copy of the document or applicable part of the document signed by the military judge who presided at the court martial constitutes a valid and sufficient record of the proceedings for all purposes.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2014-0575 effective 1 June 2014 – (7) and (8)]

112.665 – CUSTODY DURING COURT MARTIAL PROCEEDINGS

(1) An accused person is not in custody during proceedings before a court martial unless the accused person was in custody immediately prior to the commencement of the proceedings or is ordered into custody during the proceedings.

(2) An accused person may be ordered into custody or released from custody for all or part of the proceedings, including any adjournment by the military judge presiding at the court martial.

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

112.67 – ABSENCE OF MEMBERS OF COURT MARTIAL PANEL

(1) No member of a court martial panel may be absent during the trial prior to being discharged except when the judge sits alone.

(2) No officer or non-commissioned member may be added to a court martial panel after the court martial panel has been sworn.

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

112.675 – TRIAL OF SEVERAL ACCUSED BY SAME COURT MARTIAL

(1) Where a court martial is convened to try more than one accused other than by joint trial (see article 110.09 – Joint Trials), the court martial, once sworn, shall proceed with one case, postpone the other cases and try them afterwards in succession.

(2) Where two or more accused are tried separately by the same court martial upon charges arising out of the same transaction, the court may, if it considers that the interests of justice so require:

  1. adjourn each case after its finding has been pronounced until it has pronounced its findings in respect of each accused;
  2. comply with the applicable provisions of Section 9 (Sentence);
  3. close to determine sentence for all accused;
  4. re-open and pronounce the sentence to each accused; and
  5. terminate the proceedings in respect of each accused.

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


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Section 11 – Evidence

112.68 – RULES OF EVIDENCE TO BE APPLIED

Subsection 181(1) of the National Defence Act provides:

"181. (1) Subject to this Act, the rules of evidence at trials by court martial shall be such as are established by regulations made by the Governor in Council."

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

NOTE

The rules of evidence established by the Governor in Council under subsection 181(1) of the National Defence Act are found in the Military Rules of Evidence (see QR&O Volume IV, Appendix 1.3).

(C) [1 September 1999]

112.69 – ADMISSIBILITY OF DOCUMENTS AND RECORDS

Subsection 182(1) of the National Defence Act provides:

"182. (1) Such classes of documents and records as are prescribed in regulations made by the Governor in Council may be admitted, as evidence of the facts therein stated, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of those classes of documents and records or copies thereof shall be as prescribed in those regulations."

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

NOTE

For the rules as to the documents and records admissible under subsection 182(1) of the National Defence Act, see the Military Rules of Evidence (QR&O Volume IV, Appendix 1.3).

(C) [1 September 1999]

112.70 – EVIDENCE ON COMMISSION

Sections 184 and 185 of the National Defence Act provide:

"184. (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a "commissioner", to take, under oath, the evidence of any person required as a witness at a court martial

  1. who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;
  2. who is absent from the country in which the trial is held; or
  3. whose attendance is not readily obtainable for a good and sufficient reason.

(2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.

(3) Where, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of justice, appear and give evidence before the court martial and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

(4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.

185. The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2)."

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

112.71 - STATUTORY DECLARATIONS

Subsection 182(2) of the National Defence Act provides:

“182. (2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:

  1. if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;
  2. if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and
  3. at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.”

112.72 – STATUTORY DECLARATION FORM

If a prosecutor or accused wishes to introduce at a court martial a statutory declaration made in the manner prescribed by the Canada Evidence Act as referred to in subsection 182(2) of the National Defence Act, it shall be prepared in the following form:

STATUTORY DECLARATION

CANADA
Province of _____

(If taken elsewhere, describe place)

IN THE MATTER OF a court martial convened for the trial of: (name of the accused)

 

I, (name of person making declaration) solemnly declare that:

 

(particulars of evidence set out in numbered paragraphs)

 

and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

DECLARED before me at ______, this _________ day of (month), (year).

(signature of person making declaration)

(signature of person before whom declaration made)

(name of person before whom declaration is made)

(title of person before whom declaration is made)

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

NOTES

(A) Section 41 of the Canada Evidence Act allows for a statutory declaration to be received by any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter.

(B) The person making a statutory declaration must appear before one of the authorities referred to in note (A) of this article and it must be established to the satisfaction of that authority that the person making the declaration declares it to be true and is fully aware of the contents of the declaration.

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

112.73 – SERVICE OF STATUTORY DECLARATION

In accordance with subsection 182(2) of the National Defence Act, a statutory declaration that one party wishes to introduce may be served by that party directly on the other party. A statutory declaration that a prosecutor wishes to introduce may be forwarded to the commanding officer of the accused person in order to serve that person within the required time limit.

[112.74 to 112.79 inclusive: not allocated]


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Section 12 – Stay of Proceedings

112.80 – EFFECT OF A STAY OF PROCEEDINGS

(1) Except as prescribed in paragraph (2) and to the extent that a finding can be substituted by the Governor in Council under section 249.12 of the National Defence Act or by the Court Martial Appeal Court under subsection 239(1) of that Act, a stay of proceedings shall have the effect of a finding of not guilty to the charge on which it has been directed.

(2) Where in dealing with alternative charges a stay of proceedings has been directed under subparagraph (8)(a) of article 112.05 (Procedure to be Followed at a Court Martial) and subsequently a change of plea to not guilty is directed under article 112.26 (Change of Plea During Trial), the stay of proceedings shall be deemed to be removed and the trial shall proceed as if the accused had pleaded not guilty in the first instance to all the alternative charges.

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


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Section 13 – Post-Trial Unit Administrative Action

112.81 – ADMINISTRATIVE ACTION WHERE COURT MARTIAL COMPLETED

Where a sentence has been imposed upon an offender at a court martial, the offender's commanding officer shall:

  1. take the necessary action to ensure that the sentence is carried out; and
  2. cause the appropriate entries to be made to the offender's service records, including the conduct sheet (see DAOD 7006-0, Conduct Sheets).

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

[112.82 to 112.99 inclusive: not allocated]