Military Sentencing: Difference between revisions
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{{LevelZero}} | {{LevelZero}} | ||
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==General Principles== | ==General Principles== | ||
{{ | {{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. | ||
| | |{{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> | ||
{{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> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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===Applicable Offences=== | ===Applicable Offences=== | ||
{{ | {{quotation1| | ||
; Service trial of civil offences | ; Service trial of civil offences | ||
130 (1) An act or omission | 130 (1) An act or omission | ||
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; Constitutionality | ; Constitutionality | ||
Section 130(1)(a) of the NDA does not violate s. 11(f){{CCRF}}.<ref> | 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> | ||
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==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: | ||
{{ | {{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: | ||
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==Imprisonment== | ==Imprisonment== | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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 | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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: | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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==Prohibition Orders== | ==Prohibition Orders== | ||
{{ | {{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 | ||
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; 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. | ||
{{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. | {{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. | ||
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}} | }} | ||
{{ | {{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, | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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. | ||
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}} | }} | ||
{{ | {{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, | ||
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}} | }} | ||
{{ | {{quotation1| | ||
; Sentences | ; Sentences | ||
; One sentence only to be passed | ; One sentence only to be passed | ||
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}} | }} | ||
{{ | {{quotation1| | ||
'''Incarceration under more than one Sentence''' | '''Incarceration under more than one Sentence''' | ||
<br> | <br> | ||
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}} | }} | ||
{{ | {{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. | ||
Latest revision as of 14:25, 14 July 2024
General Principles
No one in any military force, domestic or foreign, can be exempted from the regular laws of Canada unless explicitly provided by legislation.[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.")