QR&Os: Volume II - Chapter 102
Disciplinary Jurisdiction

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Section 1 – Jurisdiction - Persons

102.01 – PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Section 60 of the National Defence Act provides:

"60. (1) The following persons are subject to the Code of Service Discipline:

  1. an officer or non-commissioned member of the regular force;
  2. an officer or non-commissioned member of the special force;
  3. an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is
    1. undergoing drill or training, whether in uniform or not,
    2. in uniform,
    3. on duty,
    4. [Repealed, S.C. 1998, c. 35, s. 19],
    5. called out under Part VI in aid of the civil power,
    6. called out on service,
    7. placed on active service,
    8. in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,
    9. serving with any unit or other element of the regular force or the special force, or
    10. present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;
  4. subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;
  5. a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;
  6. a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;
  7. subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;
  8. an alleged spy for the enemy;
  9. a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and
  10. a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

(2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).

(3) Every person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1)."

(C) (1 September 1999)

NOTE

Judicial interpretation of subsection 60(2) of the National Defence Act, taken with subsection 69(1), restricts the exercise of jurisdiction of service tribunals over a person who was subject to the Code of Service Discipline at the time of the alleged commission of a service offence to cases where it can be demonstrated that:

  1. trial by a service tribunal is dictated by disciplinary considerations essential to the maintenance of the morale and readiness of those remaining in the Service; and
  2. not to exercise jurisdiction will adversely affect the general standard of discipline and efficiency of the service.

As the exercise of jurisdiction of a service tribunal under subsection 60(2) of the National Defence Act involves matters of legal and factual complexity and sensitivity, no case involving such exercise should be commenced without prior appropriate consultation with a representative of the Judge Advocate General.

(C)

(102.02 TO 102.04 INCLUSIVE: NOT ALLOCATED)

102.05 – MEMBERS OF OTHER COMMONWEALTH FORCES ATTACHED OR SECONDED TO THE CANADIAN FORCES

See Part VI of the Visiting Forces Act, Revised Statutes of Canada, 1985, c. V-2 (QR&O Volume IV, appendix 2.1).

(C)

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(102.06 TO 102.08 INCLUSIVE: NOT ALLOCATED)

102.09 – PERSONS ACCOMPANYING CANADIAN FORCES

(1) Subsection 60(1) of the National Defence Act provides in part:

"60. (1) The following persons are subject to the Code of Service Discipline: ...

(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place; ..."

(2) Section 61 of the National Defence Act provides:

"61. (1) For the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the person

  1. participates with that unit or other element in the carrying out of any of its movements, manoeuvers, duties in aid of the civil power, duties in a disaster or warlike operations;
  2. is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;
  3. is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or
  4. is embarked on a vessel or aircraft of that unit or other element.

(2) Subject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.

(3) A person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate."

(3) Section 62(1) of the National Defence Act provides:

"62. (1) Every person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies."

(4) For the purposes of paragraph 61(1)(b) of the National Defence Act, any country, except Canada, in which any unit or other element of the Canadian Forces is on service or active service is designated as a country in which a person accompanies a unit or other element of the Canadian Forces. (See article 105.03 – Arrest and Hand-over of Dependants in Foreign Countries and sections 176 to 178 of the National Defence Act regarding Special General Courts Martial for trial of civilians.)

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

(102.10: NOT ALLOCATED)

102.11 – PERSONS ATTENDING EDUCATIONAL INSTITUTIONS

(1) Every officer or non-commissioned member attending an educational institution referred to in paragraph 60(1)(g) of the National Defence Act (see article 102.01 – Persons Subject to the Code of Service Discipline) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the officer in command of that educational institution.

(2) A person who attends an educational institution, otherwise than as an officer or non-commissioned member, shall not be subject to the Code of Service Discipline.

(G)

102.12 – SPIES FOR THE ENEMY

Subsection 62(2) of the National Defence Act provides:

"62. (2) Every person described in paragraph 60(1)(h) (see article 102.01 – Persons Subject to the Code of Service Discipline) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time."

(C)

102.13 – RELEASED PERSONS SERVING SENTENCE

Subsection 62(3) of the National Defence Act provides:

"62. (3) Every person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained."

(C)

102.14 – PERSONS UNDER SPECIAL ENGAGEMENT

Section 63 of the National Defence Act provides:

"63. (1) Subject to subsection (2), every person mentioned in paragraph 60(1)(j) (see article 102.01 – Persons Subject to the Code of Service Discipline) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.

(2) Where the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.

(3) Every person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving."

(C)

(102.15 AND 102.16: NOT ALLOCATED)


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Section 2 – Jurisdiction Barred

102.17 – PREVIOUS ACQUITTAL OR CONVICTION

Subsections 66(1) and (2) of the National Defence Act provide:

"66. (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

  1. has been found not guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence; or
  2. has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.

(2) Nothing in subsection (1) affects the validity of a new trial held pursuant to section 249.11 or 249.16 or a new trial directed by a court having jurisdiction to do so."

(C) (1 September 1999)

102.18 – OTHER OFFENCES DISPOSED OF AT PREVIOUS TRIAL

Subsection 66(3) of the National Defence Act provides:

"66. (3) A person who under section 194 has been sentenced in respect of a service offence admitted by that person may not be tried by a service tribunal or a civil court in respect of that offence."

(C)

(102.19: REPEALED BY P.C. 1997-1584 OF 30 OCTOBER 1997 EFFECTIVE 30 NOVEMBER 1997)


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Section 3 – Jurisdiction – Place

102.20 – PLACE OF COMMISSION OF OFFENCE

Section 67 of the National Defence Act provides:

"67. Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada."

(C)

102.21 – PLACE OF TRIAL

Section 68 of the National Defence Act provides:

"68. Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada."

(C)


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Section 4 – Jurisdiction – Limitation Period

102.22 – PERIOD OF LIABILITY UNDER CODE OF SERVICE DISCIPLINE

Section 69 of the National Defence Act provides:

“69. (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

(2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.”

(C) (4 July 2008)


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Section 5 – Offences Not Triable by Service Tribunal

102.23 – NO JURISDICTION – CERTAIN OFFENCES COMMITTED IN CANADA

Section 70 of the National Defence Act provides:

"70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:

  1. murder;
  2. manslaughter; or
  3. an offence under any of sections 280 to 283 of the Criminal Code."

(C) (1 September 1999)


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Section 6 – Jurisdiction of Civil Courts

102.24 – TRIAL OF MEMBERS BY CIVIL COURTS

(1) Section 71 of the National Defence Act provides:

"71. Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court."

(2) Section 273 of the National Defence Act provides:

"273. Where a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of, and may be tried and punished by, a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place, or by any other court to which jurisdiction has been lawfully transferred."

(C)

(102.25 TO 102.99 INCLUSIVE: NOT ALLOCATED)