Military Sentencing: Difference between revisions

From Criminal Law Notebook
← Older edit
VisualWikitext
m Text replacement - "\{\{fr\|([^\}\}]+)\}\}" to "fr:$1"
 
(27 intermediate revisions by the same user not shown)
Line 1: Line 1:
<!--****-->
[[fr:Condamnation_militaire]]
{{LevelZero}}
{{LevelZero}}
{{HeaderSentencing}}
{{HeaderSentencing}}
Line 5: Line 5:
==General Principles==
==General Principles==


{{quotation|
{{quotation3|
; Canadian Forces not affected
; Canadian Forces not affected
5 Nothing in this Act affects any law relating to the government of the Canadian Forces.
5 Nothing in this Act affects any law relating to the government of the Canadian Forces.
<br>
<br>
R.S., c. C-34, s. 4.
R.S., c. C-34, s. 4.
|[{{CCCSec|5}} CCC]
|{{CCCSec2|5}}
|{{NoteUp|5}}
|{{terms-
|"Act" (s. 2)
|"Canadian Forces" (s. 2)
}}
}}
}}


No one in any military force, domestic or foreign, can be exempted from the regular laws of Canada unless explicitly provided by legislation.<ref>
No one in any military force, domestic or foreign, can be exempted from the regular laws of Canada unless explicitly provided by legislation.<ref>
''Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts'', [1943] SCR 483, [http://canlii.ca/t/fsldn 1943 CanLII 31] (SCC){{perSCC|Duff CJ}}{{atp|497}} ("...the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.")<br>
{{CanLIIRPC|Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts|fsldn|1943 CanLII 31 (SCC)|[1943] SCR 483}}{{perSCC|Duff CJ}}{{atp|497}} ("...the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.")<br>
</ref>
 
{{reflist|2}}
<!--
===Applicable Offences===
 
{{quotation1|
; Service trial of civil offences
130 (1) An act or omission
:(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
:(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
 
|[http://canlii.ca/t/7vjm#sec130 NDA]
}}
 
; Constitutionality
Section 130(1)(a) of the NDA does not violate s. 11(f){{CCRF}}.<ref>
{{CanLIIRP|Stillman|j1n56|2019 SCC 40 (CanLII)|436 DLR (4th) 193}}{{perSCC-H|Moldaver and Brown JJ}} (5:2)
</ref>
</ref>


Line 20: Line 44:


==Available Sentences==
==Available Sentences==
Section 139 of the National Defence Act provides for the following available sentences:
Section 139 of the ''National Defence Act'' provides for the following available sentences:


{{quotation|
{{quotation1|
; Scale of punishments
; Scale of punishments
139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
Line 40: Line 64:
(2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.
(2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.
<br>
<br>
R.S., 1985, c. N-5, s. 139; 1998, c. 35, s. 35.
R.S., 1985, c. N-5, s. 139; {{LegHistory90s|1998, c. 35}}, s. 35.


|[http://canlii.ca/t/7vjm#sec139 NDA]
|[http://canlii.ca/t/7vjm#sec139 NDA]
Line 48: Line 72:
==Imprisonment==
==Imprisonment==


{{quotation|
{{quotation1|
; Imprisonment for shorter term
; Imprisonment for shorter term
140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.
140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.
<br>
<br>
R.S., 1985, c. N-5, s. 140; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 36.
R.S., 1985, c. N-5, s. 140; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140 NDA]
|[http://canlii.ca/t/7vjm#sec140 NDA]
}}
}}


{{quotation|
{{quotation1|
; Dismissal as accompanying punishment
; Dismissal as accompanying punishment
140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.
140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.
Line 62: Line 86:
; Dismissal as accompanying punishment
; Dismissal as accompanying punishment
(2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.
(2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.
1998, c. 35, s. 36.
{{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140.1 NDA]
|[http://canlii.ca/t/7vjm#sec140.1 NDA]
}}
}}


{{Quotation|
{{quotation1|
; Reduction in rank as accompanying punishment
; Reduction in rank as accompanying punishment
140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be
140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be
(a) in the case of an officer, to the lowest commissioned rank; and
(a) in the case of an officer, to the lowest commissioned rank; and
(b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.
(b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.
1998, c. 35, s. 36.
{{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140.2 NDA]
|[http://canlii.ca/t/7vjm#sec140.2 NDA]
}}
}}


{{quotation|
{{quotation1|
; Dismissal with disgrace
; Dismissal with disgrace
141 (1) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Division, impose a punishment of imprisonment for less than two years.
141 (1) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Division, impose a punishment of imprisonment for less than two years.
Line 84: Line 108:
; Consequences
; Consequences
(2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.
(2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.
R.S., 1985, c. N-5, s. 141; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, ss. 37, 92.
R.S., 1985, c. N-5, s. 141; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, ss. 37, 92.
|[http://canlii.ca/t/7vjm#sec141 NDA]
|[http://canlii.ca/t/7vjm#sec141 NDA]
}}
}}


{{quotation|
{{quotation1|
; Detention
; Detention
142 (1) The punishment of detention is subject to the following conditions:
142 (1) The punishment of detention is subject to the following conditions:
Line 97: Line 121:
(2) If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.
(2) If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.


R.S., 1985, c. N-5, s. 142; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 38.
R.S., 1985, c. N-5, s. 142; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 38.
|[http://canlii.ca/t/7vjm#sec142 NDA]
|[http://canlii.ca/t/7vjm#sec142 NDA]
}}
}}


{{quotation|
{{quotation1|
; Reduction in rank
; Reduction in rank
143 (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.
143 (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.
Line 114: Line 138:
}}
}}


{{quotation|
{{quotation1|
; Forfeiture of seniority
; Forfeiture of seniority
144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.
144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.
<br>
<br>
R.S., 1985, c. N-5, s. 144; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 39.
R.S., 1985, c. N-5, s. 144; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 39.
|[http://canlii.ca/t/7vjm#sec147 NDA]
|[http://canlii.ca/t/7vjm#sec147 NDA]
}}
}}


{{quotation|
{{quotation1|
; Fine
; Fine
145 (1) A fine must be imposed in a stated amount.
145 (1) A fine must be imposed in a stated amount.
Line 132: Line 156:
(3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.
(3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.
<br>
<br>
R.S., 1985, c. N-5, s. 145; R.S., 1985, c. 31 (1st Supp.), s. 60; 1998, c. 35, s. 39.
R.S., 1985, c. N-5, s. 145; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 39.
|[http://canlii.ca/t/7vjm#sec145 NDA]
|[http://canlii.ca/t/7vjm#sec145 NDA]
}}
}}


{{quotation|
{{quotation1|
; Civil enforcement of fines
; Civil enforcement of fines
145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.
145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.
Line 143: Line 167:
(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.
(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.
<br>
<br>
2013, c. 24, s. 21.
{{LegHistory10s|2013, c. 24}}, s. 21.
|[http://canlii.ca/t/7vjm#sec145.1 NDA]
|[http://canlii.ca/t/7vjm#sec145.1 NDA]
}}
}}




{{Quotation|
{{quotation1|
; Minor punishments
; Minor punishments
146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.
146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.
Line 156: Line 180:
}}
}}


{{Quotation|
{{quotation1|
; Limitation
; Limitation
147 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.
147 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.
Line 165: Line 189:
==Prohibition Orders==
==Prohibition Orders==


{{quotation|
{{quotation1|
; Prohibition order
; Prohibition order
147.1 (1) Where a person is convicted by a court martial of an offence
147.1 (1) Where a person is convicted by a court martial of an offence
Line 181: Line 205:


; Notification
; Notification
(4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the Firearms Act to be notified of the order.
(4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the ''Firearms Act'' to be notified of the order.


1995, c. 39, s. 176; 1996, c. 19, s. 83.1; 2012, c. 1, s. 50; 2013, c. 24, s. 22.
{{LegHistory90s|1995, c. 39}}, s. 176; {{LegHistory90s|1996, c. 19}}, s. 83.1; {{LegHistory10s|2012, c. 1}}, s. 50; {{LegHistory10s|2013, c. 24}}, s. 22.
|[http://canlii.ca/t/7vjm#sec147.1 NDA]
|[http://canlii.ca/t/7vjm#sec147.1 NDA]
}}
}}


{{quotation|
{{quotation1|
; Requirement to surrender
; Requirement to surrender
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,
Line 194: Line 218:
and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.
and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.


1995, c. 39, s. 176.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147 NDA]
|[http://canlii.ca/t/7vjm#sec147 NDA]
}}
}}


{{quotation|
{{quotation1|
; Forfeiture
; Forfeiture
147.3 (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.
147.3 (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.
Line 205: Line 229:
(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.
(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.
<br>
<br>
1995, c. 39, s. 176.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.3 NDA]
|[http://canlii.ca/t/7vjm#sec147.3 NDA]
}}
}}


{{quotation|
{{quotation1|
; Authorizations revoked or amended
; Authorizations revoked or amended
147.4 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.
147.4 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.


1995, c. 39, s. 176.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.4 NDA]
|[http://canlii.ca/t/7vjm#sec147.4 NDA]
}}
}}


{{quotation|
{{quotation1|
; Return to owner
; Return to owner
147.5 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,
147.5 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,
Line 225: Line 249:
the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.


1995, c. 39, s. 176.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.5 NDA]
|[http://canlii.ca/t/7vjm#sec147.5 NDA]
}}
}}


{{quotation|
{{quotation1|
; Sentences
; Sentences
; One sentence only to be passed
; One sentence only to be passed
Line 238: Line 262:
}}
}}


{{quotation|
{{quotation1|
'''Incarceration under more than one Sentence'''
'''Incarceration under more than one Sentence'''
<br>
<br>
Line 248: Line 272:
}}
}}


{{quotation|
{{quotation1|
; Punishment for certain offences
; Punishment for certain offences
149.2 (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of 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, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
149.2 (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of 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, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
Line 255: Line 279:
(2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.
(2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.


2001, c. 41, s. 99.
{{LegHistory00s|2001, c. 41}}, s. 99.
|[http://canlii.ca/t/7vjm#sec149.2 NDA]
|[http://canlii.ca/t/7vjm#sec149.2 NDA]
}}
}}
--->

Latest revision as of 14:25, 14 July 2024

General Principles

Canadian Forces not affected

5 Nothing in this Act affects any law relating to the government of the Canadian Forces.
R.S., c. C-34, s. 4.

– CCC (CanLII), (DOJ)

Note up: 5


Defined terms: "Act" (s. 2) and "Canadian Forces" (s. 2)

No one in any military force, domestic or foreign, can be exempted from the regular laws of Canada unless explicitly provided by legislation.[1]

  1. ↑ Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts, 1943 CanLII 31 (SCC), [1943] SCR 483, per Duff CJ, at p. 497 ("...the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.")
Retrieved from "https://criminalnotebook.ca/index.php?title=Military_Sentencing&oldid=95400"