165. (1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.

(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.

R.S., 1985, c. N-5, s. 165; 1992, c. 16, s. 2; 1998, c. 35, s. 42.

165.1 (1) The Minister 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 Director of Military Prosecutions.

(2) The Director of Military Prosecutions holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.

(2.1) The Inquiry Committee is deemed to have the powers of a court martial.

(3) The Director of Military Prosecutions is eligible to be re-appointed on the expiry of a first or subsequent term of office.

1992, c. 16, s. 2; 1998, c. 35, s. 42.

165.11 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.

1998, c. 35, s. 42.

165.12 (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

(a) prefer the charge; or

(b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

(2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

(3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

1998, c. 35, s. 42.

165.13 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

1998, c. 35, s. 42.

165.14 When the Director of Military Prosecutions prefers a charge, the Director of Military Prosecutions shall also determine the type of court martial that is to try the accused person and inform the Court Martial Administrator of that determination.

1998, c. 35, s. 42.

165.15 The Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.

1998, c. 35, s. 42.

165.16 The powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.

1998, c. 35, s. 42.

165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

(2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

(3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

(4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

(5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.

(6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

1998, c. 35, s. 42.

165.18 There shall be a person appointed to be the Court Martial Administrator.

1998, c. 35, s. 42.

165.19 (1) When a charge is preferred, the Court Martial Administrator shall convene a court martial in accordance with the determination of the Director of Military Prosecutions under section 165.14 and, in the case of a General Court Martial or a Disciplinary Court Martial, shall appoint its members.

(2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

(3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

1998, c. 35, s. 42.

165.2 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

1998, c. 35, s. 42.

165.21 (1) The Governor in Council may appoint officers who are barristers or advocates of at least ten years standing at the bar of a province to be military judges.

(2) A military judge holds office during good behaviour for a term of five years but may be removed by the Governor in Council for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.

(2.1) The Inquiry Committee is deemed to have the powers of a court martial.

(3) A military judge is eligible to be re-appointed on the expiry of a first or subsequent term of office on the recommendation of a Renewal Committee established under regulations made by the Governor in Council.

(4) A military judge ceases to hold office on reaching the retirement age prescribed by the Governor in Council in regulations.

1998, c. 35, s. 42.

165.22 (1) The rates and conditions of issue of pay of military judges shall be prescribed by the Treasury Board in regulations.

(2) The remuneration of military judges shall be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council.

1998, c. 35, s. 42.

165.23 (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

(2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.

(3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

1998, c. 35, s. 42.

165.24 The Governor in Council may designate a military judge to be the Chief Military Judge.

1998, c. 35, s. 42.

165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

1998, c. 35, s. 42.

165.26 The Chief Military Judge may authorize any military judge to perform the duties and functions of the Chief Military Judge.

1998, c. 35, s. 42.

165.27 The Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.

1998, c. 35, s. 42.

166. A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

R.S., 1985, c. N-5, s. 166; 1998, c. 35, s. 42.

167. (1) A General Court Martial is composed of a military judge and a panel of five members.

(2) The senior member of the panel must be an officer of or above the rank of colonel.

(3) If the accused person is an officer, all of the members of the panel must be officers.

(4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

(5) If the accused person is of the rank of colonel, all of the members of the panel, except the senior member, must be of or above the rank of lieutenant-colonel.

(6) If the accused person is of the rank of lieutenant-colonel, at least two of the members of the panel must be of or above the rank of lieutenant-colonel.

(7) If the accused person is a non-commissioned member, two non-commissioned members who are of the rank of warrant officer or above must be appointed as members of the panel and the other three members must be officers.

R.S., 1985, c. N-5, s. 167; 1992, c. 16, s. 3; 1998, c. 35, s. 42.

168. None of the following persons may sit as a member of the panel of a General Court Martial:

(a) an officer or non-commissioned member who is a lawyer or notary;

(b) a witness for the prosecution or the accused person;

(c) the commanding officer of the accused person;

(d) an officer or non-commissioned member appointed for the purposes of section 156;

(e) an officer below the rank of captain;

(f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

(g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

R.S., 1985, c. N-5, s. 168; 1992, c. 16, s. 4; 1998, c. 35, s. 42.

169. A Disciplinary Court Martial may try any officer of or below the rank of major or any non-commissioned member who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

R.S., 1985, c. N-5, s. 169; 1998, c. 35, s. 42.

170. (1) A Disciplinary Court Martial is composed of a military judge and a panel of three members.

(2) The senior member of the panel must be an officer of or above the rank of major or of or above any higher rank that may be prescribed by the Governor in Council in regulations.

(3) If the accused person is an officer, all of the members of the panel must be officers.

(4) If the accused person is a non-commissioned member, one of the members of the panel must be a non-commissioned member who is of the rank of warrant officer or above and the other two members must be officers.

R.S., 1985, c. N-5, s. 170; R.S., 1985, c. 31 (1st Supp.), s. 54; 1992, c. 16, s. 5; 1998, c. 35, s. 42.

171. None of the following persons may sit as a member of the panel of a Disciplinary Court Martial:

(a) an officer or non-commissioned member who is a lawyer or notary;

(b) a witness for the prosecution or for the accused person;

(c) the commanding officer of the accused person;

(d) an officer or non-commissioned member appointed for the purposes of section 156;

(e) an officer cadet;

(f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

(g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

R.S., 1985, c. N-5, s. 171; 1998, c. 35, s. 42.

172. A Disciplinary Court Martial may not pass a sentence that includes a punishment higher in the scale of punishments than dismissal with disgrace from Her Majesty’s service.

R.S., 1985, c. N-5, s. 172; 1998, c. 35, s. 42.

173. A Standing Court Martial may try any officer or non-commissioned member who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

R.S., 1985, c. N-5, s. 173; 1992, c. 16, s. 6; 1998, c. 35, s. 42.

174. Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

R.S., 1985, c. N-5, s. 174; 1992, c. 16, s. 6; 1998, c. 35, s. 42.

175. A Standing Court Martial may not pass a sentence that includes a punishment higher in the scale of punishments than dismissal with disgrace from Her Majesty’s service.

R.S., 1985, c. N-5, s. 175; 1991, c. 43, s. 16; 1998, c. 35, s. 42.

176. A Special General Court Martial may try any person, other than an officer or non-commissioned member, who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

R.S., 1985, c. N-5, s. 176; R.S., 1985, c. 31 (1st Supp.), s. 55; 1992, c. 16, s. 7; 1998, c. 35, s. 42.

177. Every military judge is authorized to preside at a Special General Court Martial, and a military judge who does so constitutes the Special General Court Martial.

R.S., 1985, c. N-5, s. 177; 1998, c. 35, s. 42.

178. A Special General Court Martial may only pass a sentence that includes a punishment of imprisonment or a fine.

R.S., 1985, c. N-5, s. 178; R.S., 1985, c. 31 (1st Supp.), s. 60; 1993, c. 34, s. 93(F); 1998, c. 35, s. 42.

179. (1) A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to

(a) the attendance, swearing and examination of witnesses;

(b) the production and inspection of documents;

(c) the enforcement of its orders; and

(d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.

(2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

R.S., 1985, c. N-5, s. 179; R.S., 1985, c. 31 (1st Supp.), s. 56; 1998, c. 35, s. 42.

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

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

(a) in the interests of public safety, defence or public morals;

(b) for the maintenance of order or the proper administration of military justice; or

(c) to prevent injury to international relations.

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

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

R.S., 1985, c. N-5, s. 180; 1992, c. 16, s. 8; 1998, c. 35, s. 43; 2001, c. 41, s. 101.

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

(2) No regulation made under this section is effective until it has been published in the Canada Gazette and every such regulation shall be laid before Parliament within fifteen days after it is made or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session.

R.S., c. N-4, s. 158.

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

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

(a) where the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;

(b) where the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and

(c) at any time before the trial, the party served with a copy of the declaration pursuant to paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.

R.S., c. N-4, s. 159.

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

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

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

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

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

R.S., 1985, c. N-5, s. 183; 1998, c. 35, s. 44.

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

(a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

(b) who is absent from the country in which the trial is held; or

(c) whose attendance is not readily obtainable for a good and sufficient reason.

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

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

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

R.S., 1985, c. N-5, s. 184; 1998, c. 35, s. 45.

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

R.S., c. N-4, s. 161.

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

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

R.S., 1985, c. N-5, s. 186; 1998, c. 35, s. 46.

187. At any time after a General Court Martial or Disciplinary Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside over the court martial may, on application,

(a) hear and determine any question, matter or objection for which the presence of the panel of the court martial is not required; and

(b) receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.

R.S., 1985, c. N-5, s. 187; 1992, c. 16, s. 9; 1998, c. 35, s. 46.

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

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

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

R.S., 1985, c. N-5, s. 188; 1998, c. 35, s. 46.

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

R.S., 1985, c. N-5, s. 189; 1998, c. 35, s. 46.

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

R.S., 1985, c. N-5, s. 190; 1991, c. 43, s. 17; 1992, c. 16, s. 10; 1998, c. 35, s. 46.

191. The military judge presiding at a General Court Martial or a Disciplinary Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.

R.S., 1985, c. N-5, s. 191; 1998, c. 35, s. 46.

192. (1) The members of the panel of a General Court Martial or a Disciplinary Court Martial determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

(2) The decisions of the panel of a General Court Martial or a Disciplinary Court Martial are determined by the vote of a majority of its members.

R.S., 1985, c. N-5, s. 192; 1992, c. 16, s. 11; 1998, c. 35, s. 46.

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

R.S., 1985, c. N-5, s. 193; 1998, c. 35, s. 46.

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

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

R.S., 1985, c. N-5, s. 194; 1998, c. 35, s. 46.

195. The finding and sentence of a court martial shall, at the conclusion of the trial of the offender so sentenced, be pronounced in open court to the offender, who shall be under the sentence as of the date of the pronouncement thereof.

R.S., c. N-4, s. 170.

196. (1) Where the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the “replacement judge”, assigned by the Chief Military Judge.

(2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge

(a) in the case of a General Court Martial or Disciplinary Court Martial, may order that the court martial

(i) continue from the stage at which it was when it was deemed to be adjourned, or

(ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been taken; and

(b) in the case of a Standing Court Martial or Special General Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been taken.

(3) In the case of a court martial continued under subparagraph (2)(a)(i),

(a) if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; and

(b) if any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.

(4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.

R.S., 1985, c. N-5, s. 196; 1998, c. 35, s. 47.

196.1 (1) Where, after an accused person has made a plea but before the court martial pronounces its finding, a member of the panel of the court martial dies or is for any reason unable to continue to act, the court martial is dissolved.

(2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.

(3) Where a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.

(4) Where a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.

1998, c. 35, s. 47.