Military Sentencing: Difference between revisions

Latest revision as of 14:25, 14 July 2024

< Sentencing

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]

↑ 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.")

[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.")

[1]

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-<!--
+[[fr:Condamnation_militaire]]
 {{LevelZero}}
 {{HeaderSentencing}}
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 ==General Principles==
-{{quotation|
+{{quotation3|
 ; Canadian Forces not affected
 Nothing in this Act affects any law relating to the government of the Canadian Forces.
 <br>
 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>
-''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===
@@ Line 33: / Line 38: @@
 ; Constitutionality
 Section 130(1)(a) of the NDA does not violate s. 11(f){{CCRF}}.<ref>
-''R v Stillman'', [http://canlii.ca/t/j1n56 2019 SCC 40] (CanLII){{perSCC|Moldaver and Brown JJ}} (5:2)
+{{CanLIIRP|Stillman|j1n56|2019 SCC 40 (CanLII)|436 DLR (4th) 193}}{{perSCC-H|Moldaver and Brown JJ}} (5:2)
 </ref>
@@ Line 39: / Line 44: @@
 ==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
 (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 67: / Line 72: @@
 ==Imprisonment==
-{{quotation|
+{{quotation1|
 ; Imprisonment for shorter term
 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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 }}
-{{quotation|
+{{quotation1|
 ; Dismissal as accompanying punishment
 .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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 }}
-{{quotation|
+{{quotation1|
 ; Dismissal with disgrace
 (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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 }}
-{{quotation|
+{{quotation1|
 ; Detention
 (1) The punishment of detention is subject to the following conditions:
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 }}
-{{quotation|
+{{quotation1|
 ; Reduction in rank
 (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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 }}
-{{quotation|
+{{quotation1|
 ; Forfeiture of seniority
 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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 }}
-{{quotation|
+{{quotation1|
 ; Fine
 (1) A fine must be imposed in a stated amount.
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 }}
-{{quotation|
+{{quotation1|
 ; Civil enforcement of fines
 .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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 ==Prohibition Orders==
-{{quotation|
+{{quotation1|
 ; Prohibition order
 .1 (1) Where a person is convicted by a court martial of an offence
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 ; 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.
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 }}
-{{quotation|
+{{quotation1|
 ; Requirement to surrender
 .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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 }}
-{{quotation|
+{{quotation1|
 ; Forfeiture
 .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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 }}
-{{quotation|
+{{quotation1|
 ; Authorizations revoked or amended
 .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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 }}
-{{quotation|
+{{quotation1|
 ; Return to owner
 .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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 }}
-{{quotation|
+{{quotation1|
 ; Sentences
 ; One sentence only to be passed
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 }}
-{{quotation|
+{{quotation1|
 '''Incarceration under more than one Sentence'''
 <br>
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 }}
-{{quotation|
+{{quotation1|
 ; Punishment for certain offences
 .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.