N-5

An Act respecting national defence

1. This Act may be cited as the National Defence Act.

R.S., c. N-4, s. 1.

2. (1) In this Act,

“aircraft” means flying machines and guided missiles that derive their lift in flight chiefly from aerodynamic forces, and flying devices that are supported chiefly by their buoyancy in air, and includes any aeroplane, balloon, kite balloon, airship, glider or kite;

“aircraft material” means engines, fittings, armament, ammunition, bombs, missiles, gear, instruments and apparatus, used or intended for use in connection with aircraft or the operation thereof, and components and accessories of aircraft and substances used to provide motive power or lubrication for or in connection with aircraft or the operation thereof;

“civil court” means a court of ordinary criminal jurisdiction in Canada and includes a court of summary jurisdiction;

“civil custody” means the holding under arrest or in confinement of a person by the police or other competent civil authority, and includes confinement in a penitentiary or civil prison;

“civil prison” means any prison, jail or other place in Canada in which offenders sentenced by a civil court in Canada to imprisonment for less than two years can be confined, and, if sentenced outside Canada, any prison, jail or other place in which a person, sentenced to that term of imprisonment by a civil court having jurisdiction in the place where the sentence was passed, can for the time being be confined;

“Code of Service Discipline” means the provisions of Part III;

“court martial” includes a General Court Martial, a Special General Court Martial, a Disciplinary Court Martial and a Standing Court Martial;

“Court Martial Appeal Court” means the Court Martial Appeal Court of Canada established by section 234;

“criminal organization” has the same meaning as in subsection 467.1(1) of the Criminal Code;

“criminal organization offence” means

( a) an offence under section 467.11, 467.12 or 467.13 of the Criminal Code, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or

( b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph ( a);

“defence establishment” means any area or structure under the control of the Minister, and the materiel and other things situated in or on any such area or structure;

“Department” means the Department of National Defence;

“Deputy Minister” means the Deputy Minister of National Defence;

“detention barrack” means a place designated as such under subsection 205(1);

“emergency” means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended;

“enemy” includes armed mutineers, armed rebels, armed rioters and pirates;

“enrol” means to cause any person to become a member of the Canadian Forces;

“Grievance Board” means the Canadian Forces Grievance Board established by subsection 29.16(1);

“Her Majesty’s Canadian Ship” means any vessel of the Canadian Forces commissioned as a vessel of war;

“Her Majesty’s Forces” means the armed forces of Her Majesty wherever raised, and includes the Canadian Forces;

“man”[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 42]

“materiel” means all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under this Act, and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided;

“mental disorder” means a disease of the mind;

“military” shall be construed as relating to all or any part of the Canadian Forces;

“military judge” means a military judge appointed under subsection 165.21(1);

“Minister” means the Minister of National Defence;

“mutiny” means collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith;

“non-commissioned member” means any person, other than an officer, who is enrolled in, or who pursuant to law is attached or seconded otherwise than as an officer to, the Canadian Forces;

“non-public property” means

( a) all money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,

( b) all money and property contributed to or by officers, non-commissioned members, units or other elements of the Canadian Forces for the collective benefit and welfare of those officers, non-commissioned members, units or other elements,

( c) by-products and refuse and the proceeds of the sale thereof to the extent prescribed under subsection 39(2), and

( d) all money and property derived from, purchased out of the proceeds of the sale of, or received in exchange for, money and property described in paragraphs ( a) to ( c);

“officer” means

( a) a person who holds Her Majesty’s commission in the Canadian Forces,

( b) a person who holds the rank of officer cadet in the Canadian Forces, and

( c) any person who pursuant to law is attached or seconded as an officer to the Canadian Forces;

“penitentiary”

( a) means a penitentiary established under Part I of the Corrections and Conditional Release Act,

( b) includes, in respect of any punishment of imprisonment for life or for two years or more imposed outside Canada pursuant to the Code of Service Discipline, any prison or place in which a person sentenced to imprisonment for life or for two years or more by a civil court having jurisdiction in the place where the sentence is imposed can for the time being be confined, and

( c) means, in any place outside Canada where there is no prison or place for the confinement of persons sentenced to imprisonment for life or for two years or more, a civil prison;

“personal equipment” means all materiel issued to an officer or non-commissioned member for the personal wear or other personal use of that officer or non-commissioned member;

“possession”[Repealed, 1995, c. 39, s. 175]

“public property” means all money and property of Her Majesty in right of Canada;

“regular force” means the component of the Canadian Forces that is referred to in subsection 15(1);

“release” means the termination of the service of an officer or non-commissioned member in any manner;

“reserve force” means the component of the Canadian Forces that is referred to in subsection 15(3);

“scale of punishments” means the scale of punishments as set out in subsection 139(1);

“serious offence” means an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code;

“service convict” means a person who is under a sentence that includes a punishment of imprisonment for life or for two years or more imposed on that person pursuant to the Code of Service Discipline;

“service custody” means the holding under arrest or in confinement of a person by the Canadian Forces, and includes confinement in a service prison or detention barrack;

“service detainee” means a person who is under a sentence that includes a punishment of detention imposed on that person pursuant to the Code of Service Discipline;

“service offence” means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline;

“service prison” means a place designated as such under subsection 205(1);

“service prisoner” means a person who is under a sentence that includes a punishment of imprisonment for less than two years imposed on that person pursuant to the Code of Service Discipline;

“service tribunal” means a court martial or a person presiding at a summary trial;

“special force” means such component of the Canadian Forces as may be established pursuant to subsection 16(1);

“summary trial” means a trial conducted by or under the authority of a commanding officer pursuant to section 163 and a trial by a superior commander pursuant to section 164;

“superior officer” means any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member;

“terrorism offence” means

( a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code,

( b) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, that is committed for the benefit of, at the direction of or in association with a terrorist group,

( c) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes a terrorist activity, or

( d) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph ( a), ( b) or ( c);

“terrorist activity” has the same meaning as in subsection 83.01(1) of the Criminal Code;

“terrorist group” has the same meaning as in subsection 83.01(1) of the Criminal Code;

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct counsel to do so, and in particular, unable on account of mental disorder to

( a) understand the nature or object of the proceedings,

( b) understand the possible consequences of the proceedings, or

( c) communicate with counsel;

“unit” means an individual body of the Canadian Forces that is organized as such pursuant to section 17, with the personnel and materiel thereof.

(2) For the purposes of the Code of Service Discipline and Part VII,

(a) a person has anything in possession when the person has it in the person’s personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by the person, for the use or benefit of the person or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in the person’s custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

R.S., 1985, c. N-5, s. 2; R.S., 1985, c. 31 (1st Supp.), ss. 42, 60; 1991, c. 43, s. 11; 1992, c. 20, s. 216; 1993, c. 34, s. 91(F); 1995, c. 39, s. 175; 1998, c. 35, s. 1; 2001, c. 32, s. 67, c. 41, s. 97; 2004, c. 15, s. 74.

3. There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.

R.S., c. N-4, s. 3.

4. The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for

(a) the construction and maintenance of all defence establishments and works for the defence of Canada; and

(b) research relating to the defence of Canada and to the development of and improvements in materiel.

R.S., 1985, c. N-5, s. 4; R.S., 1985, c. 6 (4th Supp.), s. 10.

5. The Governor in Council, on the recommendation of the Minister, may designate any other person in addition to the Minister to exercise any power or perform any duty or function that is vested in or that may be exercised or performed by the Minister under this Act.

R.S., c. N-4, s. 5.

6. The Governor General may, by commission under the Great Seal, appoint an Associate Minister of National Defence to hold office during pleasure and to exercise and perform such powers, duties and functions of the Minister as may be assigned to the Associate Minister by the Governor in Council.

R.S., c. N-4, s. 6.

7. There shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure.

R.S., c. N-4, s. 7.

8. The Governor in Council may appoint not more than three Associate Deputy Ministers of National Defence, each of whom shall have the rank and status of a deputy head of a department and as such shall, under the Minister and the Deputy Minister, exercise and perform such powers, duties and functions as deputy of the Minister and otherwise as the Minister may specify.

R.S., c. N-4, s. 8.

9. (1) The Governor in Council may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces.

(2) The Judge Advocate General holds office during pleasure for a term not exceeding four years.

(3) The Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.

R.S., 1985, c. N-5, s. 9; 1998, c. 35, s. 2.

9.1 The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.

1998, c. 35, s. 2.

9.2 (1) The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

(2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

1998, c. 35, s. 2.

9.3 (1) The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.

(2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.

(3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

1998, c. 35, s. 2.

9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

1998, c. 35, s. 2.

10. The powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.

R.S., 1985, c. N-5, s. 10; 1998, c. 35, s. 2.

10.1 For greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act.

1998, c. 35, s. 2.

11. The Governor in Council may authorize the Minister to deliver to any department or agency of the Government of Canada, for sale or disposal to any countries or international welfare organizations and on any terms that the Governor in Council may determine, any materiel that has not been declared surplus and is not immediately required for the use of the Canadian Forces or for any other purpose under this Act.

R.S., 1985, c. N-5, s. 11; 1998, c. 35, s. 3.

12. (1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

(2) Subject to section 13 and any regulations made by the Governor in Council, the Minister may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

(3) The Treasury Board may make regulations

(a) prescribing the rates and conditions of issue of pay of military judges;

(b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

(c) providing for any matter concerning the pay, allowances and reimbursement of expenses of officers and non-commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.

R.S., 1985, c. N-5, s. 12; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 4.

13. Where in any section of this Act, other than section 12, there is express reference to regulations made or prescribed by the Governor in Council or the Treasury Board in respect of any matter, the Minister does not have power to make regulations pertaining to that matter.

R.S., c. N-4, s. 13.

13.1 The Governor in Council may make regulations, to be known as the Military Police Professional Code of Conduct, to govern the conduct of members of the military police.

1998, c. 35, s. 5.