QR&Os: Volume II - Chapter 119 Mental Disorder

Official Format

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Amendment List:

  • 1 June 2014 – amended article: 119.51
  • 1 June 2014 – amended article: 119.52
  • 14 June 2013 Amended Article: 119.37 (French version only)
  • 15 August 2012 Amended Article: 119.43
  • 12 September 2008 Amended Article: 119.44
  • 18 July 2008 Amended Article: 119.10
  • 18 July 2008 Amended Article: 119.101
  • 18 July 2008 Amended Article: 119.102
  • 18 July 2008 Amended Article: 119.23
  • 18 July 2008 Amended Article: 119.33
  • 18 July 2008 Amended Article: 119.35
  • 5 June 2008 Amended Article: 119.01
  • 5 June 2008 Amended Article: 119.02
  • 5 June 2008 Amended Article: 119.05
  • 5 June 2008 Amended Article: 119.06
  • 5 June 2008 Amended Article: 119.07
  • 5 June 2008 Amended Article: 119.10
  • 5 June 2008 Amended Article: 119.12
  • 5 June 2008 Amended Article: 119.14
  • 5 June 2008 Amended Article: 119.15
  • 5 June 2008 Amended Article: 119.18
  • 5 June 2008 Amended Article: 119.20
  • 5 June 2008 Amended Article: 119.21
  • 5 June 2008 Amended Article: 119.23
  • 5 June 2008 Amended Article: 119.24
  • 5 June 2008 Amended Article: 119.26
  • 5 June 2008 Amended Article: 119.28
  • 5 June 2008 Amended Article: 119.29
  • 5 June 2008 Amended Article: 119.30
  • 5 June 2008 Amended Article: 119.31
  • 5 June 2008 Amended Article: 119.311
  • 5 June 2008 Amended Article: 119.312
  • 5 June 2008 Amended Article: 119.313
  • 5 June 2008 Amended Article: 119.314
  • 5 June 2008 Amended Article: 119.35
  • 5 June 2008 Amended Article: 119.36
  • 5 June 2008 Amended Article: 119.37
  • 5 June 2008 Amended Article: 119.38
  • 5 June 2008 Amended Article: 119.39
  • 5 June 2008 Amended Article: 119.41
  • 5 June 2008 Amended Article: 119.44
  • 5 June 2008 Amended Article: 119.45
  • 5 June 2008 Amended Article: 119.47
  • 5 June 2008 Amended Article: 119.48
  • 5 June 2008 Amended Article: 119.49
  • 5 June 2008 Amended Article: 119.50
  • 5 June 2008 Amended Article: 119.51
  • 5 June 2008 Amended Article: 119.52
  • 5 June 2008 Amended Article: 119.53
  • 5 June 2008 Amended Article: 119.54
  • 5 June 2008 Amended Article: 119.57
  • 5 June 2008 Amended Article: 119.58
  • 5 June 2008 Amended Article: 119.59
  • 5 June 2008 Amended Article: 119.61

History:


(Refer carefully to article 1.02 (Definitions) and section 197 of the National Defence Act when reading every regulation in this chapter.)

Section 1 – General

119.01 – PURPOSE

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

(M) [119.01: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

(M) [119.02: repealed on 5 June 2008]


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Section 2 – Fitness to Stand Trial

119.03 – PRESUMPTION OF FITNESS TO STAND TRIAL

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

"198. (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial."

(C)

119.04 – DIRECTION THAT ISSUE OF FITNESS BE TRIED

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

"198. (2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial."

(C)

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

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

"198. (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person."

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

(M) [119.05: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

NOTE

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

(C) [1 September 1999]

119.06 – ABSENCE OF THE ACCUSED PERSON

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

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

(M) [119.06: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.07 – REPRESENTATION BY LEGAL COUNSEL

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

(M) [119.07: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.08 – BURDEN OF PROOF

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

"198. (3) An accused person or a prosecutor who makes an application under subsection (2) (see article 119.04 – Direction that Issue of Fitness Be Tried) has the burden of proof that the accused is unfit to stand trial."

(C)

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

Section 199 of the National Defence Act provides:

"199. (1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.

(2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried."

(C)

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

(1) The issue of whether the accused person is unfit to stand trial on account of mental disorder shall be determined in a voir dire in accordance with article 119.101 (Procedure on Voir Dire – Fitness to Stand Trial), except if it is raised as a plea in bar of trial under subparagraph 112.24(1)(d) (Pleas in Bar of Trial) (see subparagraph 112.05(5)(b) – Procedure To Be Followed At a Court Martial).

(2) If the plea in bar of trial is raised at a General Court Martial, article 119.102 (Plea in Bar of Trial At a General Court Martial – Fitness to Stand Trial) applies.

(3) If the plea in bar of trial is raised at a Standing Court Martial, paragraphs 112.24(2) to (10) apply.

(M) [119.10: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008;

P.C. 2008-1319 effective 18 July 2008]

119.101 – PROCEDURE ON VOIR DIRE – FITNESS TO STAND TRIAL

(1) The party asserting that the accused person is unfit to stand trial, followed by the other party, may make any statement that is pertinent to the issue and witnesses may be called first by the party asserting that the accused is unfit to stand trial, and then by the other party, and by the court if it desires to hear any further evidence (see article 112.31 – Examination of Witnesses).

(2) The party asserting that the accused person is unfit to stand trial, followed by the other party, may address the court martial, and the party asserting that the accused person is unfit to stand trial may address the court in reply to any address made by the other party.

(3) In the case of a General Court Martial, the military judge shall instruct the members of the court martial panel on the law as to the issue of fitness to stand trial and sum up the evidence presented.

(4) The court martial shall close to make a finding as to whether the accused person is unfit to stand trial.

(5) The court martial shall reopen and the military judge or, in the case of a General Court Martial, the senior member of the court martial panel shall announce the finding (see article 112.43 – Verification by Military Judge of Legality of Proposed Finding by Court Martial Panel).

(6) The court martial may, at any time before the announcement of the finding,

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

(7) If the court martial calls or re-calls a witness, the parties may, with the permission of the military judge, ask the witness any questions, arising from the answers of the witness, that the military judge considers proper.

(8) If the court martial calls or recalls any witness after a closing address, the party asserting that the accused person is unfit to stand trial, followed by the other party, may address the court martial in respect of the evidence adduced.

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

119.102 – PLEA IN BAR OF TRIAL AT A GENERAL COURT MARTIAL – FITNESS TO STAND TRIAL

(1) This article applies in respect of a plea in bar of trial raised at a General Court Martial that the accused is unfit to stand trial on account of mental disorder.

(2) The military judge shall request the members of the court martial panel to assemble and shall identify them.

(3) The military judge shall ask the prosecutor and the accused person if they object to any of the members of the court martial panel and, if there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed.

(4) The members shall take the oath prescribed in article 112.17 (Oath to be Taken by Members of Court Martial Panel).

(5) The military judge shall ask the accused person if he or she consents to the members of the court martial panel trying the issue of unfitness to stand trial on account of mental disorder and the charges preferred against him or her.

(6) The accused person, followed by the prosecutor, may make any statement that is pertinent to the plea in bar of trial and witnesses may be called by each party and the court, if it desires to hear any further evidence (see article 112.31 – Examination of Witnesses).

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

(8) Upon conclusion of the addresses, the military judge shall instruct the members of the court martial panel on the law as to the issue of unfitness to stand trial on account of mental disorder and sum up the evidence presented.

(9) Upon conclusion of the instructions and summing up, the court martial shall close to permit the members to consider the plea in bar of trial.

(10) When the members of the court martial panel have made a finding in respect of the plea, the court martial shall reopen and the senior member of the court martial panel shall announce the finding (see article 112.43 - Verification by Military Judge of Legality of Proposed Finding by Court Martial Panel).

(11) The military judge shall request the members of the court martial panel to retire following the announcement of their finding.

(12) If the plea in bar of trial is allowed, the court martial shall consider whether it should hold a disposition hearing in accordance with article 119.44 (Procedure at Disposition Hearing).

(13) Subject to paragraph (14), if the plea in bar of trial is not allowed, the court martial shall proceed with the trial as if the issue had never arisen.

(14) If the accused person has not consented under paragraph (5) to the members of the court martial panel trying the charges preferred against him or her, the military judge shall adjourn proceedings until replacement members can be appointed (see article 111.03 - Procedure for Appointment of Court Martial Members).

(15) At the conclusion of proceedings related to the plea in bar, 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 person's commanding officer to be informed of the outcome.

(16) The plea in bar of trial and the decision in respect of the plea shall be recorded in the minutes of proceedings of the court martial.

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

119.11 – WHERE ACCUSED IS FOUND FIT TO STAND TRIAL

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

"200. (1) Where the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen."

(C)

119.12 – WHERE ACCUSED IS FOUND UNFIT TO STAND TRIAL

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

"200. (2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall

  1. set aside any plea that has been made; and
  2. hold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay."

(C)

NOTE

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

(C)

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

Section 201 of the National Defence Act provides:

"201. (1) Where a court martial makes a disposition pursuant to subsection 200(2), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into the society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

  1. by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or
  2. by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

(2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person."

(C) [1 September 1999]

119.14 – TREATMENT DISPOSITION IF NO OTHER DISPOSITION MADE

(1) Section 202 of the National Defence Act provides

"202. (1) Where the finding on trial of the issue is that an accused person is unfit to stand trial and the court martial has not made a disposition under section 201, the court martial may, on application by the prosecutor, by order, direct that treatment of the accused person be carried out for a specified period not exceeding sixty days, subject to such conditions as the court martial considers appropriate, and, where the accused person is not detained in custody, direct that the accused person submit to that treatment by the person or at the place specified in the order.

(2) No disposition may be made under this section unless the court martial is satisfied, on the basis of evidence described in subsection (3), that a specific treatment should be administered to the accused person for the purpose of making the accused person fit to stand trial.

(3) The evidence required by a court martial for the purposes of subsection (2) shall be a statement by a medical practitioner that the practitioner has made an assessment of the accused person and is of the opinion, based on the grounds specified, that

  1. the accused person, at the time of the assessment, was unfit to stand trial;
  2. the psychiatric treatment and any other related medical treatment specified by the practitioner will likely render the accused person fit to stand trial within a period not exceeding sixty days and that without that treatment the accused person is likely to remain unfit to stand trial;
  3. the risk of harm to the accused person from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and
  4. the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (2), taking into consideration the opinions stated in paragraphs (b) and (c).

(3.1) A court martial shall not make a disposition under this section unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

(4) On receipt of the notice referred to in subsection (3.1), an accused person may challenge an application of the prosecutor under this section, and may adduce any evidence for that purpose.

(5) A court martial shall not direct, and no direction given pursuant to a disposition made under this section shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment prescribed in regulations.

(6) In subsection (5), "electro-convulsive therapy" and "psychosurgery" have meaning assigned by the regulations.

(7) A court martial shall not make a disposition under this section without the consent of the person in charge of the hospital or place where the accused person is to be treated or of the person to whom responsibility for the treatment of the accused person is assigned by the court martial.

(8) A court martial may direct that treatment of an accused person be carried out pursuant to a disposition made under this section without the consent of the accused person or a person who, according to the laws of the jurisdiction where the disposition is made, is authorized to consent for the accused person."

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

"electro-convulsive therapy" (sismothérapie)
means a procedure for the treatment of certain mental disorders that induces, by electrical stimulation of the brain, a series of generalized convulsions;
"psychosurgery" (psychochirurgie)
means any procedure that by direct or indirect access to the brain removes, destroys or interrupts the continuity of histologically normal brain tissue, or inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat intractable physical pain, organic brain conditions or epilepsy, where any of those conditions is clearly demonstrable.

(M) [119.14: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

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

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

"200. (3) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person."

(2) A court martial may, on its own motion or on application of the accused person or the prosecutor, make an assessment order under subsection 200(3) of the National Defence Act at any stage of the proceedings against the accused person.

(M) [119.15: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

NOTE

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

(C)

119.16 – SUBSEQUENT PROCEEDINGS

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

"198. (5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial."

(C)

119.17 – ORDER THAT ACCUSED PERSON REMAIN IN HOSPITAL

Section 202.11 of the National Defence Act provides:

"202.11 Notwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained."

(C)

119.18 – STATUS QUO PENDING REVIEW BOARD'S HEARING

(C)

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

"202.21. (1) Where a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board."

(C)

119.19 – ORDER OR DIRECTION FOR CUSTODY OR RELEASE FROM CUSTODY

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

"202.21. (2) Notwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board."

(C)


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

119.20 – POWERS AND DUTIES OF REVIEW BOARDS

Section 202.25 of the National Defence Act provides:

"202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

(2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act."

(C) [5 June 2008]

NOTES

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

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

(C) [5 June 2008 – Note (A)]

119.21 – SENDING BACK OF ACCUSED PERSON TO COURT MARTIAL

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

"202.1 (1) Where a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.

(2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen.

(3) Notwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained."

(2) If a court martial is convened under subsection 202.1(2) of the National Defence Act, the direction that the issue of the fitness of the accused person to stand trial be tried by court martial and, if found fit, that the accused person be tried as if the issue of fitness had never arisen shall be endorsed on the original charge sheet and the endorsement shall be signed and dated by the Court Martial Administrator.

(M) [119.21: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

NOTE

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

"A ________ Court Martial shall try the issue of fitness and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, shall try the accused person as if the issue had never arisen."

(C)

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

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

"202.1 (4) In proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities."

(C)


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

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

Section 202.12 of the National Defence Act provides:

"202.12 (1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial

  1. not later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; or
  2. at any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person.

"(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.

(2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge."

(C) [18 July 2008]

119.24 – BURDEN OF PROOF AT INQUIRY

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

(M) [119.24: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

(M) [119.25: repealed on 5 June 2008]

119.26 – PRELIMINARY ACTION BY COURT MARTIAL ADMINISTRATOR

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

(2) The order convening the court martial 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 person; and
  2. identify by name, service number and rank if applicable, the accused person and the military judge assigned to preside at the court martial.

(3) The Court Martial Administrator shall forward

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

(M) [119.26: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

(M) [119.27: repealed on 1 September 1999]

119.28 – NOTICE OF WITNESSES AND DOCUMENTS

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

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

(M) [119.28: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.29 – PROCEDURE

(1) This article applies to an inquiry held under section 202.12 of the National Defence Act.

(2) At the beginning of the inquiry,

  1. members of the public shall be admitted unless excluded in accordance with subsection 180(2) of the National Defence Act; and
  2. the prosecutor, the accused person and legal counsel for the accused person shall take their places.

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

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

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

(5) The prosecutor, followed by the accused person, may make statements pertinent to the inquiry, and witnesses may be called by the prosecutor and then by the accused person.

(6) Following any action under paragraph (5), the prosecutor, followed by the accused person, may address the military judge, and the prosecutor may address the military judge in reply to any address by the accused person.

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

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

(9) The military judge may

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

(M) [119.29: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.30 – PROCEDURE GENERALLY – APPLICATION OF NATIONAL DEFENCE ACT AND REGULATIONS

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

(M) [119.30: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.31 – EVIDENCE ADMISSIBLE AT INQUIRY

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

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

(G)


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Section 4.1 – Inquiry by Court Martial as to Stay of Proceedings

119.311 – STAY OF PROCEEDINGS

Section 202.121 of the National Defence Act provides

"202.121 (1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if

  1. the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and
  2. on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that
    1. the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, and
    2. the accused person does not pose a significant threat to the safety of the public.

(2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.

(3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial, if the accused person is an officer or a non-commissioned member, or a Special General Court Martial in any other case, for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, such an inquiry if the court martial determines that it is appropriate.

(4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that

  1. the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; and
  2. the accused person does not pose a significant threat to the safety of the public.

(5) Subject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.

(6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

  1. on the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;
  2. that the accused does not pose a significant threat to the safety of the public; and
  3. that a stay is in the interests of the proper administration of justice.

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

  1. the nature and seriousness of the alleged offence;
  2. the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;
  3. the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and
  4. any other factor that the court martial considers relevant.

(9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code."

(C) [5 June 2008]

119.312 – PRELIMINARY ACTION BY COURT MARTIAL ADMINISTRATOR

(1) Prior to convening a court martial under subsection 202.121(3) of the National Defence Act, the Court Martial Administrator shall consult with the Director of Military Prosecutions and the commanding officer of the accused person to ensure that sufficient qualified personnel are available to hold the court martial.

(2) The order convening the court martial 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 person; and
  2. identify by name, service number and rank if applicable, the accused person and the military judge assigned to preside at the court martial.

(3) The Court Martial Administrator shall forward

  1. to the military judge
    1. the notice provided by the Review Board under subsection 202.121(2) of the National Defence Act,
    2. the court martial convening order,
    3. the charge sheet containing the charges upon which the accused person was found unfit to stand trial,
    4. a copy of any information provided by the original court martial upon termination of its proceedings, and
    5. a copy of any information provided upon termination of any proceedings held under section 202.121 of the National Defence Act; and
  2. to the prosecutor, the accused person, legal counsel for the accused person and the commanding officer of the accused person, copies of the documents described in subparagraph (a).

(G) [P.C. 2008-1008 effective 5 June 2008]

119.313 – PROCEDURE

(1) This article applies to the proceedings of

  1. a court martial convened under subsection 202.121(3) of the National Defence Act; and
  2. an inquiry conducted by a court martial under subsection 202.121(4) of that Act.

(2) At the beginning of the proceedings,

  1. members of the public shall be admitted unless excluded in accordance with subsection 180(2) of the National Defence Act; and
  2. the prosecutor, the accused person and legal counsel for the accused person shall take their places.

(3) If a court martial is convened under subsection 202.121(3) of the National Defence Act, the presiding military judge shall identify himself or herself and ask whether the prosecutor or the accused person objects to the proceedings being heard by him or her and, if there is an objection, follow the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) with any necessary changes.

(4) After any objection to the military judge has been disposed of, the military 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 112.18 – Objection to Interpreter), swear the interpreter (see article 112.19 – Oath to be Taken by Interpreter).

(5) The military judge shall determine the order of the parties that is in the best interests of the administration of military justice for the making of statements, the calling of witnesses and the making of submissions.

(6) The prosecutor and the accused person may make statements and call witnesses as to whether an inquiry should be held to determine whether a stay of proceedings should be ordered.

(7) The military judge may also call witnesses as to whether an inquiry should be held to determine whether a stay of proceedings should be ordered.

(8) Following the making of statements and the calling of witnesses, if any, under paragraphs (6) and (7), the prosecutor and the accused person may make submissions to the court martial.

(9) If a court martial determines under subsection 202.121(3) of the National Defence Act that it is not appropriate to hold an inquiry or is of the opinion that the conditions set out in paragraphs 202.121(4)(a) and (b) of that Act have not been satisfied, the military judge shall terminate the proceedings and cause the Judge Advocate General to be informed of the outcome of the proceedings.

(10) If a court martial determines under subsection 202.121(3) of the National Defence Act that it is appropriate to hold an inquiry or is of the opinion that the conditions set out in paragraphs 202.121(4)(a) and (b) of that Act have been satisfied, the inquiry shall proceed as soon as practicable, and the prosecutor and the accused person may make statements and call witnesses as to whether a stay of proceedings should be ordered.

(11) The military judge may also call witnesses as to whether a stay of proceedings should be ordered.

(12) Following the assessment of the accused person ordered under subsection 202.121(6) of the National Defence Act, and the making of statements and the calling of witnesses, if any, under paragraphs (10) and (11), submissions may be made to the court martial and considered in accordance with subsection 202.121(8) of that Act.

(13) The court martial shall

  1. close to determine whether a stay of proceedings should be ordered under subsection 202.121(7) of the National Defence Act; and
  2. reopen and announce its decision.

(14) The court martial may, at any time before announcing its decision,

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

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

(16) If the court martial calls or recalls any witness after the making of submissions to the court martial, the prosecutor and the accused person may make further submissions in respect of the new evidence adduced.

(17) After the decision is announced, the military judge shall terminate the proceedings in respect of the inquiry and cause the Judge Advocate General to be informed of the outcome of the proceedings.

(18) The military judge may

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

(G) [P.C. 2008-1008 effective 5 June 2008]

119.314 – PROCEDURE GENERALLY – APPLICATION OF THE NATIONAL DEFENCE ACT AND REGULATIONS

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

(G) [P.C. 2008-1008 effective 5 June 2008]


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Section 5 – Mental Disorder When Offence Committed

119.32 – PRESUMPTION OF RESPONSIBILITY

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

"202.13 (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities."

(C)

119.33 – DEFENCE OF MENTAL DISORDER

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

"202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of act or omission or of knowing that it was wrong."

(C)

NOTE

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

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

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

(C) [1 September 1999; 18 July 2008]

119.34 – BURDEN OF PROOF

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

"202.13 (3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue."

(C)

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

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

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

(2) The request shall be made

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

(3) If the request is granted, the procedure shall be as follows:

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

(M) [119.35: repealed 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008;

P.C. 2008-1319 effective 18 July 2008 – heading, (2)(a) and (b), (3)(c) and (d)]

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

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

"202.13 (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person."

(2) Subject to paragraph (3), a court martial may, on its own motion or on application of the accused person or the prosecutor, make an assessment order under subsection 202.13(4) of the National Defence Act at any stage of the proceedings against the accused person.

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

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

(M) [119.36: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

NOTE

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

(C)

119.37 – FINDING OF NOT RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

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

"202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged, but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder."

(C) [5 June 2008]

119.38 – DISPOSITION HEARING

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

"202.15 (1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay."

(C)

NOTE

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

(C)

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

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

"202.15 (2) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person."

(2) A court martial may, on its own motion or on application of the accused person or the prosecutor, make an assessment order under subsection 202.15(2) of the National Defence Act at any stage of the proceeding against the accused person.

(M) [119.39: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

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

Section 202.16 of the National Defence Act provides:

"202.16 (1) Where a court martial makes a disposition pursuant to subsection 202.15 (1), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

  1. by order, direct that the accused person be released from custody without conditions where, in the opinion of the court martial, the accused person is not a significant risk to the safety of the public;
  2. by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or
  3. by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

(2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person."

(C) [1 September 1999]

119.41 – STATUS QUO PENDING REVIEW BOARD'S HEARING

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

"202.21 (1) Where a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board."

(C) [1 September 1999]

119.42 – ORDER OR DIRECTION FOR CUSTODY OR RELEASE FROM CUSTODY

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

"202.21 (2) Notwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board."

(C)

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

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

"202.14 (2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

  1. the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;
  2. any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;
  3. any service tribunal or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;
  4. [Repealed, S.C. 1998, c. 35, s. 51(2)]
  5. the finding may be considered in making an order under Division 3 in respect of that person;
  6. the finding may be considered in determining, under section 249.13 or 249.14, whether to substitute, mitigate, commute or remit a punishment included in a sentence imposed against that person for any other offence;
  7. the finding does not include a finding or determination respecting civil liability; and
  8. the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.”

(C) [1 September 1999]


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Section 6 – Dispositions

119.44 – PROCEDURE AT DISPOSITION HEARING

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

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

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

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

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

(6) If the court martial considers it to be in the best interests of the accused person and not contrary to the public interest, the court martial may exclude the public from the hearing or any part of it.

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

(8) The court martial may

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

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

(M) [119.44: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.45 – PROCEDURAL IRREGULARITY DURING DISPOSITION HEARING

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

"202.22 (1) Any procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby."

(C)

119.46 – REASONS FOR DISPOSITION

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

"202.22 (2) After making a disposition in respect of an accused person under section 201, 202 or 202.16, a

court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons."

(C)

119.47 – TRANSMITTAL OF TRANSCRIPT

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

"202.22 (3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

(3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession."

(C) [5 June 2008]

119.48 – EFFECTIVE PERIOD OF DISPOSITION

Section 202.2 of the National Defence Act provides:

"202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code."

(C) [5 June 2008]

119.49 –COMMITTAL ORDER

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

"202.22 (4) Where a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation."

(2) A committal order made under subsection 202.22(4) of the National Defence Act shall be signed by a committal authority in the following form:

COMMITTAL ORDER

TO: _____ [title of officer or official and name of hospital or other appropriate institution]

WHEREAS: _____ [service number and rank, if applicable, and full name] has been charged with having committed (an) offence(s) under section(s) _____ of the National Defence Act;

AND WHEREAS on the _____ of _____[month], _____ [year], the accused person was found (unfit to stand trial or not responsible on account of mental disorder, as applicable).

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

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

(set out applicable conditions)

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

(set out applicable powers)

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

Dated this ___________ day of ____ [month], _____ [year].

_____ [signature, name, rank and appointment]

(M) [119.49: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008;

P.C. 2014-0575 effective 1 June 2014 – (2)]

119.50 – DISPOSITION INFORMATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(M) [119.50: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.51 – ARREST WHILE IN BREACH OF DISPOSITION

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

“202.23 (2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person

  1. is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or
  2. has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so."

(C) [1 June 2014]

119.52 – ACTION FOLLOWING ARREST WHILE IN BREACH OF DISPOSITION

Subsections 202.23(1) and (2.1) to (4) of the National Defence Act provide

"202.23 (1) In this section, "justice" means a justice as defined in section 2 of the Criminal Code.

(2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

(2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe

  1. that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to
    1. establish the identity of the accused person,
    2. establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),
    3. prevent the commission of an offence, or
    4. prevent the accused person from doing anything referred to in paragraph (2)(a) or (b); or
  2. that the accused person is subject to a disposition or an assessment order of a Review Board of another province.

(2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

(3) If a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.

(3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

(3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

(4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order."

(C) [1 June 2014]


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Section 7 – Assessment Orders and Assessment Reports

119.53 – CONTENTS OF ASSESSMENT ORDER

(1) An assessment order shall specify

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

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

ASSESSMENT ORDER

WHEREAS the court martial has reasonable grounds to believe that evidence of the mental condition of _____ [name of accused person], who has been charged with _____ may

be necessary to determine *

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

This court martial hereby orders an assessment of the mental condition of _____ [name of accused person] to be conducted by _____ [name of person or service by whom or place where assessment is to be made] at _____ for a period of _____ days.

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

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

* Insert applicable option.

Dated this ______ day of _____ [month], _____ [year].

_____ [signature of the presiding military judge]

(M) [119.53: repealed 5 June 2008]

(G) [P.C. 2008-1008  effective 5 June 2008]

119.54 – CONDITIONS FOR CUSTODY DURING ASSESSMENT

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

"202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless"

  1. the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;
  2. custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; or
  3. the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e)."

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

"202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence."

(C) [5 June 2008]

119.55 – VARIATION OF ASSESSMENT ORDER

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

"202.18 (2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances."

(C) [1 September 1999]

119.56 – NO TREATMENT ORDER ON ASSESSMENT

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

"202.17 (3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment."

(C) [1 September 1999]

119.57 – PERIODS OF ASSESSMENT

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

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

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

(M) [119.57: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.58 – EXTENSIONS OF PERIODS OF ASSESSMENT

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

(2) An extension of an assessment order shall not exceed thirty days, and the period of the initial order together with all extensions shall not exceed sixty days.

(M) [119.58: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]

119.59 – ASSESSMENT REPORTS

(1) Section 202.19 of the National Defence Act provides

"202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

(2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.

(3) Subject to regulations, where an assessment report is filed under subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.

(4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared."

(2) A court martial shall withhold some or all of the assessment report filed under subsection 202.19(2) of the National Defence Act from an accused person if it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused person, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person.

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

(M) [119.59: repealed on 5 June 2008]

(G) [P.C. 2008-1008 effective 5 June 2008]


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Section 8 – Protected Statements

119.60 – PROTECTED STATEMENTS NOT ADMISSIBLE AGAINST ACCUSED

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

"202.24 (1) In this section, "protected statement" means a statement made by the accused person, during the course and for the purposes of an assessment ordered under this Division or treatment directed by a disposition made under section 202, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction."

(2) No protected statement or reference to a protected statement made by an accused person is admissible in evidence, without the consent of the accused person, in any proceeding before a court, court martial, tribunal, body or person with jurisdiction to compel the production of evidence."

(C) [1 September 1999]

119.61 – EXCEPTIONS

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

"202.24 (3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of:

  1. determining whether the accused person is unfit to stand trial;
  2. making a disposition or placement decision respecting the accused person;
  3. [Repealed S.C. 2005, c. 22, s. 57]
  4. determining whether the balance of the mind of the accused person was disturbed at the time of commission of the alleged offence, where the accused person is a female charged with an offence arising out of the death of her newly-born child;
  5. determining whether the accused person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from responsibility by virtue of subsection 202.13(1), if the accused person puts his or her mental capacity to form the requisite intent into issue or if the prosecutor raises the issue after a finding is made of not responsible on account of mental disorder;
  6. challenging the credibility of an accused person in any proceeding where the testimony of the accused person is inconsistent in a material particular with a protected statement that the accused person made previously; or
  7. establishing the perjury of an accused person who is charged with perjury in respect of a statement made in any proceeding."

(C) [5 June 2008]

[119.62 to 119.99 inclusive: not allocated]