153. The definitions in this section apply in this Division.

“custody review officer”, in respect of a person in custody, means

(a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

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

“designated offence” means

(a) an offence that is punishable under section 130 that is

(i) listed in section 469 of the Criminal Code,

(ii) contrary to subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act and punishable by imprisonment for life, or

(iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

(b) an offence under this Act where the minimum punishment is imprisonment for life;

(c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

(d) an offence under this Act that is a criminal organization offence; or

(e) an offence under this Act that is a terrorism offence.

R.S., 1985, c. N-5, s. 153; R.S., 1985, c. 31 (1st Supp.), s. 47; 1998, c. 35, s. 40; 2001, c. 41, s. 100.

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

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

R.S., 1985, c. N-5, s. 154; R.S., 1985, c. 31 (1st Supp.), s. 48; 1998, c. 35, s. 92.

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

(a) any non-commissioned member;

(b) any officer of equal or lower rank; and

(c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

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

(a) any non-commissioned member of lower rank; and

(b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

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

R.S., 1985, c. N-5, s. 155; R.S., 1985, c. 31 (1st Supp.), s. 60.

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

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

(b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 156; R.S., 1985, c. 31 (1st Supp.), ss. 49, 60; 1998, c. 35, s. 41.

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

(a) has committed,

(b) is believed on reasonable grounds to have committed, or

(c) is charged under this Act with having committed

a service offence.

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

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

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

R.S., 1985, c. N-5, s. 157; R.S., 1985, c. 31 (1st Supp.), ss. 50, 60.

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

(a) the gravity of the offence alleged to have been committed;

(b) the need to establish the identity of the person under arrest;

(c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

(d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;

(e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

(f) the necessity to ensure the safety of the person under arrest or any other person.

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

(3) The officer or non-commissioned member in charge of a guard or a guard-room or an officer or non-commissioned member appointed for the purposes of section 156 shall receive and keep a person under arrest who is committed to his or her custody.

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

R.S., 1985, c. N-5, s. 158; R.S., 1985, c. 31 (1st Supp.), ss. 51, 60; 1998, c. 35, s. 42.

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

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

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

(a) a copy of the report and the account in writing must be provided to the person in custody; and

(b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

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

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

1998, c. 35, s. 42.

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

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

1998, c. 35, s. 42.

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

1998, c. 35, s. 42.

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

1998, c. 35, s. 42.

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

1998, c. 35, s. 42.

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

(a) remain under military authority;

(b) report at specified times to a specified military authority;

(c) remain within the confines of a specified defence establishment or at a location within a geographical area;

(d) abstain from communicating with any witness or specified person, or refrain from going to any specified place; and

(e) comply with such other reasonable conditions as are specified.

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

(a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

(b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

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

1998, c. 35, s. 42.

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

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

R.S., 1985, c. N-5, s. 159; R.S., 1985, c. 31 (1st Supp.), s. 52; 1998, c. 35, s. 42.

159.1 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.

1998, c. 35, s. 42.

159.2 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

(a) custody is necessary to ensure the person’s attendance before a service tribunal or a civil court to be dealt with according to law;

(b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of justice; and

(c) any other just cause has been shown, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

1998, c. 35, s. 42.

159.3 (1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.

(2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.

1998, c. 35, s. 42.

159.4 (1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.

(2) The undertaking under which a person is released may be varied

(a) by direction of a military judge on application with reasonable notice being given; or

(b) with the written consent of the person and the Director of Military Prosecutions.

1998, c. 35, s. 42.

159.5 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

1998, c. 35, s. 42.

159.6 (1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

(2) In deciding whether to make the direction, the military judge shall take into account

(a) the location of the person in custody;

(b) the gravity of the offence;

(c) the circumstances under which the unit or element detaining the person in custody is deployed;

(d) the availability of counsel for the Canadian Forces and the person in custody;

(e) the limitations of available telecommunications devices;

(f) the time required to bring the person in custody and the person’s counsel before the military judge; and

(g) any other matter that the military judge considers relevant.

1998, c. 35, s. 42.

159.7 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

1998, c. 35, s. 42.

159.8 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.

1998, c. 35, s. 42.

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

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

1998, c. 35, s. 42.

160. In this Division, “commanding officer”, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.

R.S., 1985, c. N-5, s. 160; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 42.

161. Proceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 161; 1998, c. 35, s. 42.

161.1 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

1998, c. 35, s. 42.

162. Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

R.S., 1985, c. N-5, s. 162; 1998, c. 35, s. 42.

162.1 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.

1998, c. 35, s. 42.

162.2 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.

1998, c. 35, s. 42.

162.3 The definitions in this section apply in this Division.

“commanding officer”, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160.

“superior commander” means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander.

1998, c. 35, s. 42.

163. (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

(a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

(b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

(d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and

(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

(2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if

(a) the commanding officer carried out or directly supervised the investigation of the offence;

(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

(c) the commanding officer laid the charge or caused it to be laid.

(3) Subject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

(a) detention for a period not exceeding thirty days;

(b) reduction in rank by one rank;

(c) severe reprimand,

(d) reprimand,

(e) a fine not exceeding basic pay for one month, and

(f) minor punishments.

(4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

(a) detention not exceeding fourteen days;

(b) severe reprimand;

(c) reprimand;

(d) a fine not exceeding basic pay for fifteen days; and

(e) minor punishments.

R.S., 1985, c. N-5, s. 163; R.S., 1985, c. 31 (1st Supp.), ss. 53, 60; 1991, c. 43, s. 14; 1998, c. 35, s. 42.

163.1 (1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

(a) another officer who has jurisdiction to try the accused person by summary trial; or

(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

(2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

(3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

1998, c. 35, s. 42.

164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

(a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

(b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;

(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

(d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and

(e) the superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

(2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if

(a) the superior commander carried out or directly supervised the investigation of the offence;

(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or

(c) the superior commander laid the charge or caused it to be laid.

(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.

(4) Subject to the conditions set out in Division 2 relating to punishments, a superior commander at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

(a) severe reprimand;

(b) reprimand; and

(c) fine.

R.S., 1985, c. N-5, s. 164; R.S., 1985, c. 31 (1st Supp.), s. 60; 1991, c. 43, s. 15; 1998, c. 35, s. 42.

164.1 (1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

(a) another officer who has jurisdiction to try the accused person by summary trial; or

(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

(2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

(3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

1998, c. 35, s. 42.

164.2 (1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.

(2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if

(a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and

(b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

1998, c. 35, s. 42.