QR&Os: Volume II - Chapter 103
Service Offences

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Section 1 - General Principles Concerning Responsibility for Offences

103.01 - RESPONSIBILITY FOR OFFENCES

Section 72 of the National Defence Act provides:

"72. (1) Every person is a party to and guilty of an offence who

  1. actually commits it;
  2. does or omits to do anything for the purpose of aiding any person to commit it;
  3. abets any person in committing it; or
  4. counsels or procures any person to commit it.

(2) Every person who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.

(3) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence."

SPECIMEN CHARGE

Para. 117(b)
N.D.A.

IMPROPERLY ACCEPTED CONSIDERATION IN RESPECT OF THE PERFORMANCE OF A MILITARY DUTY

Particulars: In that he, on (date), at (indicate place of offence), counselled (number, rank and name), of (unit), to accept a gratuity of one hundred dollars from the firm of (name), in respect of the said (rank and name), carrying out his military duty of patrolling the premises of the said (name of firm), and the said (rank and name) accepted such gratuity.


(C)

NOTES

(A) A person who, while subject to the Code of Service Discipline, aids, abets or counsels another to commit a service offence, is guilty of committing that offence himself, whether or not he is present when the offence is committed and may be charged with having committed that offence or under section 129 of the National Defence Act. (See article 103.60 - Conduct to the Prejudice of Good Order and Discipline.)

(B) Aiding or abetting the commission of an offence involves actual participation or assistance. Mere knowledge of another's intention or plans to commit an offence, or mere standing by while the offence is being committed, is not enough to make a person guilty of that particular offence; but this does not exclude the possibility that that person may have committed a different offence by having failed to take preventive measures.

(C) One who supplies the means for the commission of an offence, knowing of its intended use, is guilty of the offence if it is committed.

(D) Assistance given after the commission of an offence does not make the person assisting guilty of the offence, if he is not shown to have been associated previously in the commission of the offence; but if the assistance is rendered while some act is being done which enters into the offence, although the offence might be complete without it (e.g., taking away and concealing the proceeds of a theft), it may amount to aid rendered in the actual commission of the offence.

(E) Subsection 72(1) of the National Defence Act contemplates an offence actually committed by someone. It therefore follows that where no offence is committed by anyone, a person is not rendered liable as a principal merely because he has counselled another to commit an offence, but he may thereby have committed an offence under section 129 of the National Defence Act. (See article 103.60 - Conduct to the Prejudice of Good Order and Discipline.)

(F) The statement in a charge of an offence against one who aids, abets or counsels should be in the form prescribed for the offence committed by the actual perpetrator or, when laid under section 129 of the National Defence Act in the statement of offence prescribed in article 103.60 (Conduct to the Prejudice of Good Order and Discipline). The fact of aiding, abetting or counselling should be stated in the particulars of the offence.

(G) In most cases attempts may be charged only under section 129 of the National Defence Act (article 103.60 - Conduct to the Prejudice of Good Order and Discipline) but exceptions are to be found in section 84 (article 103.17 - Striking or Offering Violence to a Superior Officer), section 88 (article 103.21 - Desertion), section 101 (article 103.34 - Escape from Custody), and section 130 (article 103.61 - Offences Against other Canadian Law) of that Act. There are two essential elements of an attempt:

  1. an intent to commit the offence,
  2. an act or omission towards the commission of the offence.

An intent alone is not sufficient if nothing is done to carry it into effect. A distinction must, however, be drawn between acts or omissions toward the commission of an offence and those which are mere preparation. It is not possible to draw a clear line of distinction but, in general, preparation consists in devising or arranging the means for the commission of an offence while, on the other hand, an act or omission sufficient to support a charge of attempting must involve a direct movement towards the commission of an offence after the preparations have been made. For example, a person, having an intent to set fire to a building, might purchase matches for the purpose. The purchase would merely be a stage in his preparations and not such an act as to justify a charge of attempting. An example of an act justifying a charge of attempting would be the application of a lighted match to the building.

(H) An offence against this section is an act, conduct, disorder or neglect to the prejudice of good order and discipline and where it is not practical to charge the offender as a principal and the offence is not an attempt as explained in Note (G), he should be charged under section 129 of the National Defence Act.

(I) Intent, which is normally an ingredient of crime, is not capable of positive proof; it can only be inferred from overt acts. The inference that can be drawn from proved overt acts creates difficulty. As a proposition of ordinary good sense it can be stated that as a person is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while there is an inference which may be drawn, it is not one which must be drawn. If on all facts of the case it is not the correct inference, then it should not be drawn.

(C)


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103.02 - IGNORANCE OF LAW NO EXCUSE

Section 150 of the National Defence Act provides:

"150. The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person."

(C)

NOTE

Section 150 of the National Defence Act relates only to ignorance of the law and not to mistakes of fact; for example, it would be no excuse for a recruiting officer charged with enrolling a person who is under age to state that he was unfamiliar with the appropriate regulation, but it would be a defence if he could show that he had reasonable cause to believe that the recruit had in fact attained the age prescribed in regulations.

(C)

103.03 - CIVIL DEFENCES AVAILABLE TO ACCUSED

(1) Section 151 of the National Defence Act provides:

"151. All rules and principles from time to time followed in the civil courts that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline."

(2) The condonation of an act or omission on any ground whatsoever, whether by superior authority or otherwise, shall not be a justification, excuse or defence for the act or omission.

(M)

NOTES

(A) The grounds of justification, excuse or defence most likely to be relied on under this section are: drunkenness, compulsion, self-defence, defence of property and use of force to prevent the commission of an offence. Other grounds of justification, excuse or defence, exist in the Criminal Code, other statutes and the common law.

DRUNKENNESS

(B) Drunkenness is no defence unless, in cases where a specific intent forms part of the offence, it can be shown that the accused was so drunk at the time of the commission of the offence that he was incapable of forming the necessary intent. Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

(C) Evidence of drunkenness which does not prove that the accused was incapable of forming the necessary intent, and which merely established that his mind was so affected by drink, that he more readily gave way to some violent passion does not negate specific intent.

COMPULSION

(D) A person charged with having committed an offence may raise compulsion as justification, excuse or defence if all of the following conditions were present:

  1. he received threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence,
  2. he believed that such threats would be executed,
  3. he was not a party to any association or conspiracy which rendered him subject to compulsion in the commission of the offence.

(E) Compulsion may not be raised as justification, excuse or defence in respect of offences of high treason or treason, murder, piracy, attempted murder, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or abduction or detention of young persons.

SELF-DEFENCE

(F) Where a person charged with the commission of an offence desires to raise justification, excuse or defence on the ground of self-defence, the plea will be determined upon the principles prescribed in sections 34, 35, 36 and 37 of the Criminal Code.

DEFENCE OF PROPERTY

(G) Where a person charged with the commission of an offence desires to raise a justification, excuse or defence on the ground of defence of property, the plea will be determined upon the principles prescribed in sections 38 to 42 of the Criminal Code.

(H) A person who has been charged with an offence involving the use of force by him may find justification, excuse or defence in accordance with the principles laid down in such sections of the Criminal Code as sections 25, 27, 30 and 32.

MENTAL DISORDER

(I) Section 16 of the Criminal Code and subsection 202.13(1) of the National Defence Act codify the common law principle that an accused person cannot be held responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. However, the rules respecting the operation of the defence at trial remain in common law.

Under the common law rules, the prosecutor may not introduce in the main trial evidence of the accused person's mental disorder unless the accused person puts in issue his mental capacity to commit the offence. Where the accused person does not put his mental capacity in issue in the conduct of his defence, the prosecutor may, after the main trial, introduce evidence of the accused person's mental disorder in order to trigger a finding of not responsible on account of mental disorder. However, this may only be done if the court has concluded that the accused person was otherwise guilty of the offence charged. This point in the trial arises only when the court reopens to announce its finding in respect of each charge and the judge advocate verifies the legality of each finding. Article 119.35 (Evidence of Mental Disorder Where Accused Does Not Raise the Issue) sets out the procedure for this eventuality.

The operation of the defence of mental disorder entails subtle Charter considerations. Reference should be made to the relevant case law for a complete statement of the common law rules.

(C)

[103.04: not allocated]


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Section 2 - Service Offences

103.05 - INTRODUCTION

(1) When it is desired to refer to an enactment that creates a particular offence, the number of the relevant provision of the National Defence Act should be cited (for the proper form of citation see the Specimen Charges set out in the articles next following) and not the number of the article in QR&O in which that provision is quoted.

(2) When it is required in proceedings under the Code of Service Discipline that offences be stated, the forms of statement of offence, contained in paragraph (2) of the articles next following, should be used as appropriate.

(M)

103.06 - OFFENCES BY COMMANDERS WHEN IN ACTION

(1) Section 73 of the National Defence Act provides:

"73. Every officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces who

  1. when under orders to carry out an operation of war or on coming into contact with an enemy that it is the duty of the officer to engage, does not use his utmost exertion to bring the officers and non-commissioned members under his command or his vessel, aircraft or other materiel into action,
  2. being in action, does not, during the action, in the officer's own person and according to the rank of the officer, encourage his officers and non-commissioned members to fight courageously,
  3. when capable of making a successful defence, surrenders his vessel, aircraft, defence establishment, materiel, unit or other element of the Canadian Forces to the enemy,
  4. being in action, improperly withdraws from the action,
  5. improperly fails to pursue an enemy or to consolidate a position gained,
  6. improperly fails to relieve or assist a known friend to the utmost of his power, or
  7. when in action, improperly forsakes his station,

is guilty of an offence and on conviction, if the officer acted traitorously, shall be sentenced to imprisonment for life, if the officer acted from cowardice, is liable to imprisonment for life or less punishment, and in any other case, is liable to dismissal with disgrace from Her Majesty's service or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 73 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.06a

  2. Text Version - Statement of the offence - 103.06b

  3. Text Version - Statement of the offence - 103.06c

  4. Text Version - Statement of the offence - 103.06d

  5. Text Version - Statement of the offence - 103.06e

  6. Text Version - Statement of the offence - 103.06f

  7. Text Version - Statement of the offence - 103.06g

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SPECIMEN CHARGES

Para. 73(a)
N.D.A.

WHILE IN COMMAND OF A VESSEL OF THE CANADIAN FORCES ON COMING INTO CONTACT WITH AN ENEMY THAT IT WAS HIS DUTY TO ENGAGE, DID NOT USE HIS UTMOST EXERTION TO BRING HIS VESSEL INTO ACTION

Particulars: In that he, on (date), at or about (latitude and longitude), while in command of Her Majesty’s Canadian Ship (name), having come into contact with (name or description of other ship), an enemy that it was his duty to engage, did (not) (here specify acts of omission and commission which show failure to use "utmost exertion").


 

Para. 73(b)
N.D.A.

TRAITOROUSLY, WHILE IN COMMAND OF A UNIT OF THE CANADIAN FORCES, BEING IN ACTION, DID NOT DURING THE ACTION, IN HIS OWN PERSON AND ACCORDING TO HIS RANK, ENCOURAGE HIS OFFICERS AND NON COMMISSIONED MEMBERS TO FIGHT COURAGEOUSLY

Particulars: In that he, on (date), at (indicate place of offence), while in command of (unit), Canadian Forces, being in action, took cover in a ditch while his unit was advancing, at the same time calling to his officers and non-commissioned members to do likewise, with intent to thereby assist the enemy.


 

Para. 73(c)
N.D.A.

FROM COWARDICE, WHILE IN COMMAND OF A DEFENCE ESTABLISHMENT OF THE CANADIAN FORCES, WHEN CAPABLE OF MAKING A SUCCESSFUL DEFENCE, SURRENDERED HIS DEFENCE ESTABLISHMENT TO THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), while in command of the DND power-house situated there, although capable of making a successful defence of the said power-house, because of fear of personal danger surrendered it to the enemy.


 

Para. 73(d)
N.D.A.

WHILE IN COMMAND OF A UNIT OF THE CANADIAN FORCES, BEING IN ACTION, IMPROPERLY WITHDREW FROM THE ACTION

Particulars: In that he, on (date), at (indicate place of offence), while in command of (name of unit), a unit of the Canadian Forces in action against the enemy, withdrew from that action without due cause.


 

Para. 73(e)
N.D.A.

WHILE IN COMMAND OF AN AIRCRAFT OF THE CANADIAN FORCES, IMPROPERLY FAILED TO PURSUE AN ENEMY

Particulars: In that he, on (date), at or about (position and altitude), while in command of (type) aircraft (number), having been in action against an enemy (type) aircraft, without due cause failed to pursue the enemy aircraft when it broke off the engagement and left the scene of the action.


 

Para. 73(f)
N.D.A.

WHILE IN COMMAND OF A UNIT OF THE CANADIAN FORCES, IMPROPERLY FAILED TO ASSIST A KNOWN FRIEND TO THE UTMOST OF HIS POWER

Particulars: In that he, on (date), at (indicate place of offence), while in command of (unit), Canadian Forces, knowing that (description of unit, etc., requiring assistance), required assistance in order to repel an attack then being made upon it by the enemy, without due cause failed to provide any such assistance, with the intent to thereby assist the enemy.


 

Para. 73(g)
N.D.A.

FROM COWARDICE, WHILE IN COMMAND OF A DEFENCE ESTABLISHMENT OF THE CANADIAN FORCES WHEN IN ACTION IMPROPERLY FORSOOK HIS STATION

Particulars: In that he, on (date), at (indicate place of offence), while in command of (defence establishment), being in action against the enemy relinquished his command on the pretext of being unwell and sought shelter in a stone building off the defence establishment.


(C) [1 September 1999]

NOTES

(A) A charge should not be laid under paragraph 73(d), (e), (f) or (g) of the National Defence Act if the "improper" conduct amounted merely to an error in judgement or incorrect action. The element of dereliction of duty must have been present.

(B) The word “traitorously” signifies that the person accused has been false in his allegiance to Her Majesty.

(C) The word “cowardice” signifies that the person accused acted in an ignoble manner from fear.

(D) The particulars of every charge under this section must indicate the identity of the vessel, aircraft, defence establishment, unit or other element of which the accused was in command and, where applicable, the particulars must show circumstances which indicate traitorous or cowardly conduct.

(C)


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103.07 - OFFENCES BY ANY PERSON IN PRESENCE OF ENEMY

(1) Section 74 of the National Defence Act provides:

"74. Every person who

  1. improperly delays or discourages any action against the enemy,
  2. goes over to the enemy,
  3. when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect,
  4. improperly abandons or delivers up any defence establishment, garrison, place, materiel, post or guard,
  5. assists the enemy with materiel,
  6. improperly casts away or abandons any materiel in the presence of the enemy,
  7. improperly does or omits to do anything that results in the capture by the enemy of persons or the capture or destruction by the enemy of materiel,
  8. when on watch in the presence or vicinity of the enemy, leaves his post before he is regularly relieved or sleeps or is drunk,
  9. behaves before the enemy in such manner as to show cowardice, or
  10. does or omits to do anything with intent to imperil the success of any of Her Majesty's Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 74 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.07a

  2. Text Version - Statement of the offence - 103.07b

  3. Text Version - Statement of the offence - 103.07c

  4. Text Version - Statement of the offence - 103.07d

  5. Text Version - Statement of the offence - 103.07e

  6. Text Version - Statement of the offence - 103.07f

  7. Text Version - Statement of the offence - 103.07g

  8. Text Version - Statement of the offence - 103.07h

  9. Text Version - Statement of the offence - 103.07i

  10. Text Version - Statement of the offence - 103.07j

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SPECIMEN CHARGES

Para. 74(a)
N.D.A.

IMPROPERLY DISCOURAGED AN ACTION AGAINST THE ENEMY

Particulars: In that he, on (date), at or about (latitude and longitude), while Torpedo and Anti-Submarine Officer in Her Majesty’s Canadian Ship (name), knowing that it was proposed to launch a torpedo attack against the enemy, falsely represented to his Captain that the torpedo tubes were defective, thereby persuading the Captain to abstain from the proposed attack.


 

Para. 74(b)
N.D.A.

WHILE IN ACTION WENT OVER TO THE ENEMY

Particulars: In that he, on (date), at (position and altitude), while in action against enemy aircraft, without due cause, left his formation and landed at an enemy aerodrome.


 

Para. 74(c)
N.D.A.

WHEN ORDERED TO CARRY OUT AN OPERATION OF WAR, FAILED TO USE HIS UTMOST EXERTION TO CARRY THE ORDERS INTO EFFECT

Particulars: In that he, on (date), at or about (latitude and longitude), while Gunnery Officer in Her Majesty’s Canadian Ship (name), having been ordered by his Captain to prepare for action between his ship and (enemy), unnecessarily permitted delay in the repair of an ammunition hoist.


 

Para. 74(d)
N.D.A.

IMPROPERLY ABANDONED MATERIEL

Particulars: In that he, on (date), at (indicate place of offence), while carrying a drum of ammunition forward, cast away the drum of ammunition into a roadside ditch.


 

Para. 74(e)
N.D.A.

TRAITOROUSLY ASSISTED THE ENEMY WITH MATERIEL

Particulars: In that he, on (date), at (indicate place of offence), misdirected vehicles bringing foodstuffs to Her Majesty’s Canadian Forces, so causing those vehicles and foodstuffs to fall into the hands of the enemy, as was his intent.


 

Para. 74(f)
N.D.A.

IMPROPERLY, WHILE IN ACTION, CAST AWAY MATERIEL IN THE PRESENCE OF THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), during an attack by the enemy, without due cause cast away his rifle.


 

Para. 74(g)
N.D.A.

IMPROPERLY OMITTED TO DO SOMETHING RESULTING IN THE DESTRUCTION BY THE ENEMY OF MATERIEL

Particulars: In that he, on (date), at (indicate place of offence), failed to ensure the adequate spacing of vehicles travelling in convoy under his command, resulting in the destruction of three (type of vehicles), when cross-road (map reference) came under enemy fire.


 

Para. 74(h)
N.D.A.

WHEN ON WATCH IN THE VICINITY OF THE ENEMY, SLEPT

Particulars: In that he, on (date), at (indicate place of offence), at (time) hours when on watch in the vicinity of an enemy position, was asleep.


 

Para. 74(i)
N.D.A.

BEHAVED BEFORE THE ENEMY IN SUCH A MANNER AS TO SHOW COWARDICE

Particulars: In that he, on (date), at (indicate place of offence), during an attack by the enemy on his unit, threw away his rifle and ammunition and took cover in a cellar.


 

Para. 74(j)
N.D.A.

WHILE IN ACTION DID SOMETHING INTENDING TO IMPERIL THE SUCCESS OF FORCES COOPERATING WITH HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), while in action against the enemy, caused a message to be sent to the commanding officer of (unit) a unit of the (foreign force), stating that there was reason to believe a large-scale counter-attack was imminent, knowing such was not the case and intending thereby to discourage the commanding officer of that unit from continuing to hold his position.


(C) [1 September 1999]

NOTES

(A) A charge should not be laid under paragraph 74(a), (d), (f) or (g) of the National Defence Act if the "improper" conduct amounted merely to an error in judgement or incorrect action. The element of dereliction of duty must have been present.

(B) The offence of abandoning or delivering up, prescribed in paragraph 74(d) of the National Defence Act can be committed only by the person in charge, whether temporarily or otherwise, of the defence establishment. garrison, place, materiel, post, or guard, and not by a subordinate under his command.

(C) The word "cowardice" in paragraph 74(i) of the National Defence Act signifies that the person accused acted in an ignoble manner from fear.

(D) The word "traitorously" signifies that the person accused has been false in his allegiance to Her Majesty.

(E) The word "intent" in paragraph 74(j) of the National Defence Act merely has the effect of imposing upon the prosecution a duty, more onerous than would otherwise be the case, of proving that the accused did, or omitted to do the act in question deliberately. In the case of most offences, however, although the word "intent" does not appear in the section prescribing them, intent is an essential element but it is inferred from the facts and circumstances established. There are some offences, however, in which intent is not an essential element.

(F) Where applicable the particulars of a charge must show the circumstances which indicate traitorous or cowardly conduct.

(C)


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103.08 - OFFENCES RELATED TO SECURITY

(1) Section 75 of the National Defence Act provides:

"75. Every person who

  1. improperly holds communication with or gives intelligence to the enemy,
  2. without authority discloses in any manner whatever any information relating to the numbers, position, materiel, movements, preparations for movements, operations or preparations for operations of any of Her Majesty's Forces or of any forces cooperating therewith,
  3. without authority discloses in any manner whatever any information relating to a cryptographic system, aid, process, procedure, publication or document of any of Her Majesty's Forces or of any forces cooperating therewith,
  4. makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it,
  5. gives a parole, watchword, password, countersign or identification signal different from that which he received,
  6. without authority alters or interferes with any identification or other signal,
  7. improperly occasions false alarms,
  8. when acting as sentry or lookout, leaves his post before he is regularly relieved or sleeps or is drunk,
  9. forces a safeguard or forces or strikes a sentinel, or
  10. does or omits to do anything with intent to prejudice the security of any of Her Majesty's Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 75 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.08a

  2. Text Version - Statement of the offence - 103.08b

  3. Text Version - Statement of the offence - 103.08c

  4. Text Version - Statement of the offence - 103.08d

  5. Text Version - Statement of the offence - 103.08e

  6. Text Version - Statement of the offence - 103.08f

  7. Text Version - Statement of the offence - 103.08g

  8. Text Version - Statement of the offence - 103.08h

  9. Text Version - Statement of the offence - 103.08i

  10. Text Version - Statement of the offence - 103.08j

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SPECIMEN CHARGES

Para. 75(a)
N.D.A.

IMPROPERLY HELD COMMUNICATION WITH THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), without authority sent a messenger under a flag of truce to the enemy, proposing a cease-fire for Christmas Day.


 

Para. 75(b)
N.D.A.

TRAITOROUSLY DISCLOSED INFORMATION RELATING TO MOVEMENTS OF HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), informed the second secretary of the __________ Embassy that certain of Her Majesty’s Canadian Ships were expected to sail from the east coast of Canada on the following day with the intent that this statement should be conveyed to an enemy power.


 

Para. 75(c)
N.D.A.

WITHOUT AUTHORITY DISCLOSED INFORMATION RELATING TO A CRYPTOGRAPHIC PROCESS OF HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), without authority, informed A.B., a civilian of that city, of the method then being used to encode communications between units of the Canadian Forces.


 

Para. 75(d)
N.D.A.

MADE KNOWN THE PASSWORD TO A PERSON NOT ENTITLED TO RECEIVE IT

Particulars: In that he, on (date), at (indicate place of offence), made known to A.B., a civilian of that city, the password then required to be given to the guard by persons wishing to enter (unit or other place), the said A.B. not being a person entitled to receive the password.


 

Para. 75(e)
N.D.A.

GAVE A PASSWORD DIFFERENT FROM THAT WHICH HE RECEIVED

Particulars: In that he, on (date), at (indicate place of offence), when being relieved of his duties as sentry at the main entrance to (unit or other place), gave to (number, rank and name) who relieved him a password different from that which he had received.


 

Para. 75(f)
N.D.A.

WITHOUT AUTHORITY ALTERED AN IDENTIFICATION SIGNAL

Particulars: In that he, on (date), at (indicate place of offence), without authority, altered the lights displayed as an identification signal by the leading vehicle in a motor convoy proceeding from (place) to (place).


 

Para. 75(g)
N.D.A.

IMPROPERLY OCCASIONED FALSE ALARMS

Particulars: In that he, on (date), at (indicate place of offence), without authority, dispatched a message to (unit) stating that hostile aircraft were approaching that unit, and thus occasioned a false alarm there.


 

Para. 75(h)
N.D.A.

WHEN ACTING AS LOOKOUT WAS DRUNK

Particulars: In that he, on (date), at (indicate place of offence), at (time) hours, when acting as lookout at (post), was drunk.


 

Para. 75(i)
N.D.A.

STRUCK A SENTINEL

Particulars: In that he, on (date), at (indicate place of offence), struck with his fist the face of (number, rank and name), who at that time was acting as sentinel on (post).


(C) [1 September 1999]

NOTES

(A) A charge should not be laid under paragraph 75(a) or 75(g) of the National Defence Act if the "improper" conduct amounted merely to an error in judgement or incorrect action. The element of dereliction of duty must have been present.

(B) The expression "without authority" in paragraphs 75(b), 75(c) and 75(f) of the National Defence Act signifies that the accused acted or omitted to act with neither the approval of a competent superior nor the sanction of law, practice or custom. If the evidence adduced by the prosecution, taken by itself, tends to show that the accused acted without authority, a service tribunal may convict unless the accused proves that he had authority.

(C) The word "safeguard" in paragraph 75(i) of the National Defence Act relates to a party detailed for the protection of some person or persons, or of a particular village, house or other property. A single sentry posted from such a party is still part of the safeguard, and it is as much an offence to force him by breaking into the property under his special care as to force the whole party. A person posted solely to control traffic is not a "safeguard" within the meaning of this provision.

(D) The word "traitorously" signifies that the person accused has been false in his allegiance to Her Majesty.

(E) The particulars of a charge must show the circumstances which indicate traitorous conduct.

(C)


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103.09 - OFFENCES RELATED TO PRISONERS OF WAR

(1) Section 76 of the National Defence Act provides:

"76. Every person who

  1. by want of due precaution, or through disobedience of orders or wilful neglect of duty, is made a prisoner of war,
  2. having been made a prisoner of war, fails to rejoin Her Majesty's service when able to do so, or
  3. having been made a prisoner of war, serves with or aids the enemy,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 76 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.09a

  2. Text Version - Statement of the offence - 103.09b

  3. Text Version - Statement of the offence - 103.09c

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SPECIMEN CHARGES

Para. 76(a)
N.D.A.

THROUGH DISOBEDIENCE OF ORDERS WAS MADE A PRISONER OF WAR

Particulars: In that he, on (date), at (indicate place of offence), was captured by the enemy through disobeying an order of his Sergeant not to proceed beyond line (description of line).


 

Para. 76(b)
N.D.A.

HAVING BEEN MADE A PRISONER OF WAR, FAILED TO REJOIN HER MAJESTY’S SERVICE WHEN ABLE TO DO SO

Particulars: In that he, on (date), at (indicate place of offence), when Camp (name) at which he was held as a prisoner of war was taken by the forces of ______ and he was set at liberty, failed to rejoin Her Majesty’s Forces and remained at Camp _________.


 

Para. 76(c)
N.D.A.

TRAITOROUSLY, HAVING BEEN MADE A PRISONER OF WAR, AIDED THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), being at that time a prisoner of war in the hands of the enemy, broadcast an address to members of Her Majesty’s Forces, calling upon them to refuse to continue fighting.


(C) [1 September 1999]

NOTES

(A) The word "wilful" in paragraph 76(a) of the National Defence Act signifies that the accused knew what he was doing, intended to do what he did, and was not acting under compulsion.

(B) The expression "neglect of duty" in paragraph 76(a) of the National Defence Act refers to failure to perform a duty of which the accused knew or ought to have known.

(C) The word "traitorously" signifies that the person accused has been false in his allegiance to Her Majesty.

(C)


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103.10 - OFFENCES RELATED TO OPERATIONS

(1) Section 77 of the National Defence Act provides:

"77. Every person who

  1. does violence to any person bringing materiel to any of Her Majesty's Forces or to any forces cooperating therewith,
  2. irregularly detains any materiel being conveyed to any unit or other element of Her Majesty's Forces or of any forces cooperating therewith,
  3. irregularly appropriates to the unit or other element of the Canadian Forces with which the person is serving any materiel being conveyed to any other unit or element of Her Majesty's Forces or of any forces cooperating therewith,
  4. without orders from the person's superior officer, improperly destroys or damages any property,
  5. breaks into any house or other place in search of plunder,
  6. commits any offence against the property or person of any inhabitant or resident of a country in which he is serving,
  7. steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations,
  8. steals any money or property that has been left exposed or unprotected in consequence of warlike operations, or
  9. takes otherwise than for the public service any money or property abandoned by the enemy,

is guilty of an offence and on conviction, if the person committed the offence on active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

(2) The statement of the offence in a charge under section 77 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.10a

  2. Text Version - Statement of the offence - 103.10b

  3. Text Version - Statement of the offence - 103.10c

  4. Text Version - Statement of the offence - 103.10d

  5. Text Version - Statement of the offence - 103.10e

  6. Text Version - Statement of the offence - 103.10f

  7. Text Version - Statement of the offence - 103.10g

  8. Text Version - Statement of the offence - 103.10h

  9. Text Version - Statement of the offence - 103.10i

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SPECIMEN CHARGES

Para. 77(a)
N.D.A.

WHEN ON ACTIVE SERVICE, DID VIOLENCE TO A PERSON BRINGING MATERIEL TO HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), assaulted one A.B., a tradesman who was bringing coal to (unit or place), for use of the Canadian Forces.


 

Para. 77(b)
N.D.A.

IRREGULARLY DETAINED MATERIEL BEING CONVEYED TO A UNIT OF HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), when in charge of traffic control (unit), detained for three hours a priority convoy carrying ammunition to (unit), on the pretext that he was required to search the convoy.


 

Para. 77(c)
N.D.A.

WHEN ON ACTIVE SERVICE, IRREGULARLY APPROPRIATED TO THE UNIT OF THE CANADIAN FORCES WITH WHICH HE WAS SERVING MATERIEL BEING CONVEYED TO ANOTHER UNIT OF FORCES COOPERATING WITH HER MAJESTY’S FORCES

Particulars: In that he, on (date), at (indicate place of offence), while acting as driver of vehicle (number) (unit), carrying blankets to (unit) of the (name offences), without authority unloaded three hundred of the said blankets and placed them in the quarter-master stores of (name of accused’s unit).


 

Para. 77(d)
N.D.A.

WHEN ON ACTIVE SERVICE, WITHOUT ORDERS FROM HIS SUPERIOR OFFICER, IMPROPERLY DESTROYED PROPERTY

Particulars: In that he, on (date), at (indicate place of offence), having come into possession of enemy documents relating to its order of battle, which it was his duty to preserve, destroyed those documents.


 

Para. 77(e)
N.D.A.

BROKE INTO A HOUSE IN SEARCH OF PLUNDER

Particulars: In that he, on (date), at (indicate place of offence), in (country), broke open the front door of a dwelling-house No. _ in street , and entered it in search of plunder.


 

Para. 77(f)
N.D.A.

COMMITTED AN OFFENCE AGAINST THE PERSON OF AN INHABITANT OF A COUNTRY IN WHICH HE WAS SERVING

Particulars: In that he, on (date), at (indicate place of offence), in (country), assaulted A.B., an inhabitant of that country.


 

Para. 77(g)
N.D.A.

WHEN ON ACTIVE SERVICE STOLE FROM THE PERSON OF A PERSON KILLED IN THE COURSE OF WARLIKE OPERATIONS

Particulars: In that he, on (date), at (indicate place of offence), when on active service did steal a watch from the body of A.B., a person killed in an air raid.


 

Para. 77(h)
N.D.A.

STOLE MONEY THAT HAD BEEN LEFT UNPROTECTED IN CONSEQUENCE OF WARLIKE OPERATIONS

Particulars: In that he, on (date), at (indicate place of offence), did steal the sum of ________ dollars left unprotected in the offices of the Acme Trust Association when those offices were vacated by reason of an enemy air raid.


 

Para. 77(i)
N.D.A.

WHEN ON ACTIVE SERVICE TOOK OTHERWISE THAN FOR THE PUBLIC SERVICE PROPERTY ABANDONED BY THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), when on active service sold to A.B., a civilian, a motor vehicle numbered XY-231, which had been abandoned by the enemy.


(C)

NOTES

(A) The word "irregularly" in paragraphs 77(b) and 77(c) of the National Defence Act refers to something done or omitted contrary to law, regulations, orders or instructions, or contrary to established practice or custom. The particulars of a charge must show how the act alleged was irregular.

(B) A charge should not he laid under paragraph 77(d) of the National Defence Act if the "improper" conduct alleged amounted merely to an error in judgement or incorrect action. The element of dereliction of duty must have been present.

(C) The expression "active service" refers to the situation that exists when the Governor in Council exercises its powers under section 31 of the National Defence Act to place the Canadian Forces, or any part thereof or any officer or non-commissioned member thereof, on active service.

(C)


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103.11 - OFFENCE OF BEING A SPY

(1) Section 78 of the National Defence Act provides:

"78. Every person who spies for the enemy is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 78 should be in the following form:

Was a spy for the enemy.

SPECIMEN CHARGE

Sec. 78
N.D.A.

WAS A SPY FOR THE ENEMY

Particulars: In that he, on (date), at (indicate place of offence), was acting as a paid agent for (enemy power).


(C) [1 September 1999]

NOTE

Conviction for this offence does not depend upon proving that the accused has committed any particular act of spying but merely that the accused has the status of a spy for the enemy.

(C)

103.12 - MUTINY WITH VIOLENCE

(1) Section 79 of the National Defence Act provides:

"79. Every person who joins in a mutiny that is accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 79 should be in the following form:

Joined in a mutiny accompanied by violence.

SPECIMEN CHARGE

Sec. 79
N.D.A.

JOINED IN A MUTINY ACCOMPANIED BY VIOLENCE

Particulars: In that he, on (date), in (ship), joined other non-commissioned members of the ship’s company in a mutiny to resist and offer violence to their superior officers in the execution of their duty, in the course of which mutiny (rank and name), one of the ship’s officers was struck about the face by the mutineers.


(C) [1 September 1999]

NOTE

The word "mutiny" is defined in section 2 of the National Defence Act (see article 1.02 - Definitions). Doubts may well arise whether an officer or non-commissioned member, present when a mutiny occurs, actually joined in it or not. Where any such doubt exists, an alternative charge may be laid under paragraph 81(c) of the National Defence Act which makes it an offence to be present at a mutiny and not use utmost endeavours to suppress it.

(C)

103.13 - MUTINY WITHOUT VIOLENCE

(1) Section 80 of the National Defence Act provides:

"80. Every person who joins in a mutiny that is not accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding fourteen years or to less punishment or, in the case of a ringleader of the mutiny, to imprisonment for life or to less punishment." (1 September 1999)

(2) The statement of the offence in a charge under section 80 should be in the following form:

SPECIMEN CHARGE

Sec. 80
N.D.A.

JOINED AS A RINGLEADER IN A MUTINY NOT ACCOMPANIED BY VIOLENCE

Particulars: In that he, on (date), at (indicate place of offence), joined with other men of his unit in refusing to perform their lawful duties, in which mutiny he acted as a ringleader by exhorting and encouraging others to continue the mutiny.


(C) [1 September 1999]

NOTE

A "ringleader" is merely a leader and a person may be treated as a ringleader who is a leader in the carrying on of a mutiny. There may, of course, be more than one ringleader in a particular mutiny.

(C)


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103.14 - OFFENCES RELATED TO MUTINY

(1) Section 81 of the National Defence Act provides:

"81. Every person who

  1. causes or conspires with any other person to cause a mutiny,
  2. endeavours to persuade any person to join in a mutiny,
  3. being present, does not use his utmost endeavours to suppress a mutiny, or
  4. being aware of an actual or intended mutiny, does not without delay inform his superior officer thereof,

is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment."

(2) The statement of the offence in a charge under section 81 should be in one of the following forms:

  1. Choose an option from each of the lists below to construct the statement of the offence.
    • Caused a mutiny
    • Conspired with another person to cause a mutiny
  2. Endeavoured to persuade another person to join in a mutiny
  3. Being present, did not use his utmost endeavours to suppress a mutiny
  4. Text Version - Statement of the offence - 103.14d

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SPECIMEN CHARGES

Para. 81(a)
N.D.A.

CONSPIRED WITH ANOTHER PERSON TO CAUSE A MUTINY

Particulars: In that he, on (date), at (indicate place of offence), combined with (number, rank and name) (or "with certain other persons unknown") to address other members of (unit) and to exhort them to refuse to turn out for any further morning parades.


 

Para. 81(b)
N.D.A.

ENDEAVOURED TO PERSUADE ANOTHER PERSON TO JOIN IN A MUTINY

Particulars: In that he, on (date), at (indicate place of offence), endeavoured to persuade (number, rank and name) to join him in refusing to obey the orders of the commanding officer to report for duty.


 

Para. 81(c)
N.D.A.

BEING PRESENT, DID NOT USE HIS UTMOST ENDEAVOURS TO SUPPRESS A MUTINY

Particulars: In that he, on (date), at (indicate place of offence), being present when members of his unit refused to carry out the tasks assigned to them by competent authority, made no attempt to suppress the mutiny.


 

Para. 81(d)
N.D.A.

BEING AWARE OF AN INTENDED MUTINY, DID NOT WITHOUT DELAY INFORM HIS SUPERIOR OFFICER THEREOF

Particulars: In that he, on (date), at (indicate place of offence) knowing that the members of (name of unit), intended to resist and offer violence to their superior officers in the execution of their duty, did not inform (number, rank, and name), his superior officer, of that fact.


(C)

NOTES

(A) To constitute the offence of conspiracy under the Code of Service Discipline, there must be a combination of two or more persons who have agreed and intend to accomplish an unlawful purpose or by unlawful means a purpose not in itself unlawful.

(B) The agreement in a conspiracy need not:

  1. be in any particular form or manifested in any formal words, or
  2. expressly declare the means by which the conspiracy is to be accomplished or what part each conspirator is to play.

(C) The minds of the parties to the conspiracy must arrive at a common understanding to accomplish the object of the conspiracy.

(D) A conspiracy to commit an offence is a different and distinct offence from the offence which is the object of the conspiracy. While both the conspiracy and the consummated offence of mutiny in this case may be charged and tried, it is preferable to avoid a multiplicity of charges but if it is thought necessary to lay a charge of conspiracy as well as a charge for the offence of mutiny, they should be laid in the alternative.

(E) A person may be tried for conspiring to cause a mutiny although the conspiracy proved abortive and no mutiny took place.

(C)


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103.15 - ADVOCATING GOVERNMENTAL CHANGE BY FORCE

(1) Section 82 of the National Defence Act provides:

"82. Every person who publishes or circulates any writing, printing or document in which is advocated, or who teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change within Canada is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment."

(2) The statement of the offence in charge under section 82 should be in the following form:

Text Version - Statement of the offence - 103.15

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SPECIMEN CHARGE

Sec. 82
N.D.A.

ADVOCATED THE USE WITHOUT THE AUTHORITY OF LAW, OF FORCE AS A MEANS OF ACCOMPLISHING A GOVERNMENTAL CHANGE IN CANADA

Particulars: In that he, on (date), at (indicate place of offence), during the course of an address delivered before the said: "We should march on the parliament buildings, gaol all the members, and take control of the police and communications. We could then put in our own men", or words to that effect.


(C)

103.16 - DISOBEDIENCE OF LAWFUL COMMAND

(1) Section 83 of the National Defence Act provides:

"83. Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment."

(2) The statement of the offence in a charge under section 83 should be in the following form:

SPECIMEN CHARGE

Sec. 83
N.D.A.

DISOBEYED A LAWFUL COMMAND OF A SUPERIOR OFFICER

Particulars: In that he, on (date), at (indicate place of offence), did not leave the canteen when ordered to do so by (number, rank and name).


(C)

NOTES

(A) The expression "superior officer" is defined in section 2 of the National Defence Act to mean any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by that Act, or by regulations or by custom of the service, authorized to give a lawful command to that other officer or non-commissioned member. Unless this relationship exists, the charge must be laid under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(B) A service tribunal should be satisfied, before conviction, that the accused knew that the person, with respect to whom the offence prescribed in this section was committed, was a superior officer. If the superior did not wear the insignia of his rank, and was not personally known to the accused, evidence would be necessary to show that the accused was otherwise aware that he was his superior officer.

(C) Where the accused is charged with an offence against a superior officer who is of the same rank, evidence must be adduced to show that the latter is the accused's superior on some other grounds, for example, by reason of the appointment which the superior officer holds.

(D) To establish an offence under this section it is necessary to prove non-compliance with a command, i.e., disobedience. The disobedience must relate to the time when the command is to be obeyed and may arise from the failure to comply at once with a command which requires prompt and immediate obedience or a failure to take a proper opportunity to carry out a command which requires compliance sometime in the future. A person must therefore have and fail to take the opportunity of carrying out a command before it is an offence under this section. One who merely says "I will not do it" does not disobey a command if in fact he repents and carries it out when it is to be done, although he may be liable under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(E) An omission arising from misapprehension is not an offence under this section, nor is failure to obey a command where obedience would be physically impossible.

(F) A command, in order to be lawful must be one relating to military duty, i.e., the disobedience of which must tend to impede, delay or prevent a military proceeding. A superior officer has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of a military duty or regulation or for a purpose connected with the welfare of troops or for any generally accepted details of military life. He has no right to take advantage of his military rank to give a command which does not relate to military duty or usage which has for its sole object the attainment of some private end.

(G) To establish an offence under this section, it is not necessary to prove that the command was given personally by the superior officer. It is sufficient to show that it was given on behalf of a superior officer by someone whom the accused might reasonably suppose to have been duly authorized to notify him of the command.

(H) A civilian cannot give "a lawful command" to members of the service but it may well be the duty of an officer or non-commissioned member to do the act indicated, apart from any order, and if he does not do so, he may be liable under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(I) The command must be a lawful one (see article 19.015 - Lawful Commands and Orders, and Notes thereto).

(J) With respect to non-compliance with one of two conflicting commands, see article 19.02 (Conflicting Lawful Commands and Orders).

(C)


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103.17 - STRIKING OR OFFERING VIOLENCE TO A SUPERIOR OFFICER

(1) Section 84 of the National Defence Act provides:

"84. Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment."

(2) The statement of the offence in a charge under section 84 should be in one of the following forms:

Text Version - Statement of the offence - 103.17

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SPECIMEN CHARGES

Sec. 84
N.D.A.

STRUCK A SUPERIOR OFFICER

Particulars: In that he, on (date), at (indicate place of offence), hit (number, rank and name) on the head with a stick.


 

Sec. 84
N.D.A.

USED VIOLENCE AGAINST A SUPERIOR OFFICER

Particulars: In that he, on (date), at (indicate place of offence), pushed (number, rank and name).


(C)

NOTES

(A) The expression "superior officer" is defined in section 2 of the National Defence Act to mean any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by that Act, or by regulation or by custom of the service, authorized to give a lawful command to that other officer or non-commissioned member. Unless this relationship exists, the charges must be laid under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(B) A service tribunal should be satisfied, before conviction, that the accused knew that the person, with respect to whom an offence prescribed in section 84 of the National Defence Act was committed, was a superior officer. If the superior did not wear the insignia of his rank, and was not personally known to the accused, evidence would be necessary to show that the accused was otherwise aware that he was his superior officer.

(c) Where an accused is charged with an offence against a superior officer who is of the same rank, evidence must be adduced to show that the latter is the accused's superior on some other ground, for example, by reason of the appointment which the superior officer holds.

(D) "Strikes" means that a blow is struck with the hand or fist or something which is held in the hand.

(E) "Uses violence" includes all forms of violence other than striking. Kicking or butting with the head should be charged as "using violence" and not as "striking".

(F) The words "offers violence" include any threatening gesture or act which, if completed, would end in violence, but they do not extend to an insulting or impertinent gesture or act from which violence could not result. For example, a non-commissioned member who throws down arms on parade, but in such a direction that they could not strike a superior officer, could not be deemed to have offered violence within the meaning of this section. On the other hand, the throwing of arms at or the pointing of a loaded fire-arm at a superior would amount to offering violence. Conduct not amounting to offering violence, but which is insubordinate in nature, would properly be charged under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline) or might amount to "behaving with contempt" under section 85 thereof (see article 103.18 - Insubordinate Behaviour).

(G) In order to constitute an offence of attempting to strike, or of attempting to use violence, the following elements must be present:

  1. an intent to commit the offence.
  2. an act towards the commission of the offence.

An intent alone is not sufficient if nothing is done to carry it into effect. A distinction must, however, be drawn between an act toward the commission of an offence and an act which is mere preparation. It may be difficult to draw a clear line of distinction, but, in general, preparation consists in devising or arranging the means for the commission of an offence while, on the other hand, an act or omission sufficient to support a charge of attempting must involve a direct step toward the commission of the offence after the preparations have been made. For example a person, having an intent to strike a superior officer, might go some distance away and pick up a stick. The procurement of the stick would merely be a stage in his preparations and not such an act as to justify a charge of attempting to strike. An example of an act justifying a charge of attempting to strike would be the picking up of a stick in the vicinity of the superior officer concerned in such circumstances as to indicate that the act of picking up was the first of an intended continuous series of movements which, if continued would have resulted in an actual offence of striking.

(H) If violence is used in self-defence and it is shown that it was necessary, or at the moment the accused had reason to believe that it was necessary for his actual protection from injury and that he used no more violence than was reasonably necessary for that purpose he is legally justified in using it, and commits no offence.

(I) Unless it is established that violence is needed for self-defence, provocation is not a ground of acquittal but tends merely to mitigate the punishment. Evidence of provocation, if tendered, must be admitted.

(J) See section 133 of the National Defence Act (article 103.62 - Conviction of Related or Less Serious Offences) under which a person charged with any one of the offences prescribed in this section 84 of the National Defence Act may be found guilty of any other offences prescribed in section.

(C)


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103.18 - INSUBORDINATE BEHAVIOUR

(1) Section 85 of the National Defence Act provides:

"85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

(2) The statement of the offence in a charge under section 85 should be in the following form:

Text Version - Statement of the offence - 103.18

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SPECIMEN CHARGE

Sec. 85
N.D.A.

USED THREATENING LANGUAGE TO A SUPERIOR OFFICER

Particulars: In that he, on (date), at (indicate place of offence), said to (number, rank and name) "I’ll catch up with you some dark night, and you will wind up in hospital" or words to that effect.


(C)

NOTES

(A) The expression "superior officer" is defined in section 2 of the National Defence Act to mean any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by that Act, or by regulation or by custom of the service, authorized to give a lawful command to that other officer or non-commissioned member. Unless this relationship exists, the charge must be laid under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(B) A service tribunal should be satisfied, before conviction, that the accused knew that the person, with respect to whom an offence in this section was committed, was a superior officer. If the superior did not wear the insignia of his rank, and was not personally known to the accused, evidence would be necessary to show that the accused was otherwise aware that he was his superior officer.

(C) Where the accused is charged with an offence against a superior officer who is of the same rank, evidence must be adduced to show that the latter is the accused's superior on some other ground, for example, by reason of the appointment which the superior officer holds.

(D) Where a charge is for using threatening or insulting language, the particulars must state the expressions or their substance and the superior officer to whom they were addressed.

(E) In the case of threatening or insulting words, they must have been expressed to a superior officer and with an insubordinate intent, that is to say, they must be, either in themselves, or in the manner or circumstances in which they were spoken, insulting or disrespectful.

(F) In the case of contemptuous behaviour, the act or omission complained of must have been within the sight or hearing of the superior officer in question.

(G) Insubordinate language or conduct not falling within Notes (E) or (F) may only be charged under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(H) Mere abusive or violent language used by, or contemptuous behaviour on the part of, a drunken person should not be charged under section 85 of the National Defence Act. As a general rule, the interests of discipline would be served by laying a charge under section 97 of the National Defence Act (see article 103.30 - Drunkenness) or section 120 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(C)


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103.19 - QUARRELS AND DISTURBANCES

(1) Section 86 of the National Defence Act provides:

"86. Every person who

  1. quarrels or fights with any other person who is subject to the Code of Service Discipline, or
  2. uses provoking speeches or gestures toward a person so subject that tend to cause a quarrel or disturbance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

(2) The statement of the offence in a charge under section 86 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.19a

  2. Text Version - Statement of the offence - 103.19b

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SPECIMEN CHARGE

Para. 86(b)
N.D.A.

USED PROVOKING SPEECHES TOWARD A PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE, TENDING TO CAUSE A QUARREL

Particulars: In that he, on (date), at (indicate place of offence), said to (number, rank and name) "If you weren’t afraid of him, you would take (rank and name) outside and teach him a lesson" or words to that effect.


(C)

NOTE

The offences in section 86 of the National Defence Act are prescribed so that those in authority will have a suitable means of suppressing quarrels or disturbances in circumstances in which they might have serious consequences. For example, a fight in a ship, in an aircraft, or in a place where explosive or valuable and delicate apparatus is situated, might produce extremely serious results. Charges should not be laid indiscriminately under this section for mere isolated squabbles .

(C)

103.20 - RESISTING OR ESCAPING FROM ARREST OR CUSTODY

(1) Section 87 of the National Defence Act provides:

"87. Every person who is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

  1. being concerned in a quarrel, fray or disorder,
    1. refuses to obey an officer, though of inferior rank, who orders the person into arrest, or
    2. strikes or uses or offers violence to any such officer,
  2. strikes or uses or offers violence to any other person in whose custody he is placed, whether or not that person is his superior officer and whether or not that other person is subject to the Code of Service Discipline,
  3. resists an escort whose duty it is to apprehend him or to have him in charge, or
  4. breaks out of barracks, station, camp, quarters or ship,"

(2) The statement of the offence in a charge under section 87 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.20a

  2. Text Version - Statement of the offence - 103.20b

  3. Text Version - Statement of the offence - 103.20c

  4. Text Version - Statement of the offence - 103.20d

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SPECIMEN CHARGE

Para. 87(a)
N.D.A.

BEING CONCERNED IN A QUARREL, STRUCK AN OFFICER WHO ORDERED HIM INTO ARREST

Particulars: In that he, on (date), at (indicate place of offence), being engaged in a quarrel with (number, rank and name) struck in the face (number, rank and name) when ordered into arrest by the said (rank and name).


 

Para. 87(b)
N.D.A.

OFFERED VIOLENCE TO A PERSON IN WHOSE CUSTODY HE WAS PLACED

Particulars: In that he, on (date), at (indicate place of offence), while in custody, threatened with a length of pipe (number, rank and name), a person in whose custody he was placed. (1 September 1999)


 

Para. 87(c)
N.D.A.

RESISTED AN ESCORT WHOSE DUTY IT WAS TO HAVE HIM IN CHARGE

Particulars: In that he, on (date), at (indicate place of offence), while under escort of (number, rank and name), resisted the escort by kicking and struggling.


 

Para. 87(d)
N.D.A.

BROKE OUT OF BARRACKS

Particulars: In that he, on (date), at (indicate place of offence), being under punishment of confinement to barracks, quit his barracks.


(C) [1 September 1999]

NOTES

(A) The words "offers violence" in paragraphs 87(a) and 87(b) of the National Defence Act include any defiant gesture or act that, if completed, would end in violence but do not extend to an insulting or impertinent gesture or act from which violence could not result.

(B) A charge might be laid under paragraph 87(b) of the National Defence Act of assaulting a civilian policeman if the person committing the assault has lawfully been placed in the custody of the policeman.

(C) The offence of resisting, prescribed in paragraph 87(c) of the National Defence Act, may be committed even if the resistance is passive. A non-commissioned member lying down and refusing to move, if physically able to move, "resists". Threats or a threatening attitude which in fact impede his arrest may amount to resisting an escort. The particulars of the charge should specify the nature of the resistance.

(D) The offence of breaking out under paragraph 87(d) of the National Defence Act consists of quitting barracks, etc., at a time when the accused had no right to do so, either because he was on duty or under punishment, or because of some regulation, order or instruction: and it is immaterial whether the offence was accompanied by violence, stratagem, disguise or simply by walking past a sentry. Where the accused has remained absent for some time after breaking out of barracks the accused should normally be charged only with desertion or absence without leave. The mode in which the act was effected will, however, assist the commanding officer in determining whether to deal with it as an offence under this section, or to treat it as amounting to desertion or absence without leave. The particulars of the charge must show that the absence was without permission, or otherwise unlawful. A charge of breaking out of quarters, etc., may be laid in a case of a person quartered in one part of a barrack who improperly leaves that part for another part where he had no right to be.

(C)


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103.21 - DESERTION

(1) Section 88 of the National Defence Act provides:

"88. (1) Every person who deserts or attempts to desert is guilty of an offence and on conviction, if the person committed the offence on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

(2) A person deserts who

  1. being on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service;
  2. having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;
  3. absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;
  4. is absent without authority from his place of duty and at any time during such absence forms the intention of remaining absent from his place of duty; or
  5. while absent with authority from his place of duty, with the intention of remaining absent from his place of duty, does any act or omits to do anything the natural and probable consequence of which act or omission is to preclude the person from being at his place of duty at the time required.

(3) A person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of remaining absent from his place of duty."

(2) The statement of the offence in a charge under section 88 should be in one of the following forms:

Text Version - Statement of the offence - 103.21

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SPECIMEN CHARGES

Sec. 88
N.D.A.

ATTEMPTED TO DESERT

Particulars: In that he, on (date), at (indicate place of offence), was apprehended scaling the security fence of his unit dressed in civilian clothes with a railway ticket in his possession.


 

Sec. 88
N.D.A.

DESERTED

Particulars: In that he, on (date), at (indicate place of offence), when under orders for embarkation, absented himself without authority from (unit), from (date) until (date), with intent to avoid that embarkation.


 

Sec. 88
N.D.A.

DESERTED

Particulars: In that he, on (date), at (indicate place of offence), without authority absented himself from (unit), until apprehended on (date) at (indicate place of offence).


(C)

NOTES

(A) It is an essential ingredient of the offence of desertion that the accused have had a wrongful intent. The question as to whether an accused intended not to return, or did any act which showed that the accused had an intention of not returning, is in each case a question of fact to be decided by the service tribunal upon the evidence submitted in the course of the trial. Prolonged absence which the accused fails to explain may be taken into account by the service tribunal as one of the factors relevant to the issue of whether the accused intended not to return. Where, however, the absence has lasted for six months or more, subsection 88(3) of the National Defence Act applies. Evidence relating to the following questions may assist the court in determining whether the accused intended to return:

  1. Did the accused make any remarks indicating that he did not intend to return?
  2. Were the circumstances in which the accused was living during the absence inconsistent with an intention of returning?
  3. Did the accused change his name during his absence?
  4. Was the state of the accused's kit inconsistent with an intention of returning?

(B) In order to establish an offence of attempting to desert, the following two elements must be proven:

  1. an intent to commit the offence of desertion,
  2. an act or omission towards the commission of the offence of desertion.

An intent to desert is not sufficient alone if nothing is done to carry it into effect. A distinction must, however, be drawn between acts or omissions toward the commission of an offence of desertion and those which are mere preparations. It is not possible to draw a clear line of distinction but, in general, preparation consists in devising or arranging the means for the commission of an offence while an act or omission sufficient to support a charge of attempting to desert must involve a direct movement towards the commission of the offence after the preparations have been made. For example, a person, having an intent to desert, might pack his kit. That fact would merely be a stage in his preparations and not such an act that would justify a charge of attempting to desert. An example of an act justifying a charge of attempting to desert would be the scaling of a fence surrounding the camp after preparations indicating an intent to desert.

(C) The offence of desertion is committed even though the accused person may have left his place of duty with the intention of joining another unit. It is not necessary to prove that he intended to leave Her Majesty's service.

(D) The expression "without authority" in section 88 of the National Defence Act signifies that the accused was absent with neither the approval of a competent superior nor the sanction of law, practice or custom.

(E) See section 133 of the National Defence Act (article 103.62 - Conviction of Related or Less Serious Offences) under which a person charged with desertion may be found guilty of attempting to desert, or of being absent without leave, and a person charged with attempting to desert may be found guilty of being absent without leave. See also section 137 of the National Defence Act (article 103.63 - Conviction of Attempt to Commit Offence) under which a person may be convicted of an attempt to commit an offence although charged with actually committing that offence, or convicted of an attempt to commit an offence although the evidence shows the offence was committed.

(F) The expression "active service" refers to the situation that exists when the Governor in Council exercises its powers under section 31 of the National Defence Act to place the Canadian Forces, or any part thereof or any officer or non-commissioned member thereof, on active service.

(C)


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103.22 - CONNIVANCE AT DESERTION

(1) Section 89 of the National Defence Act provides:

“89. Every person who

  1. being aware of the desertion or intended desertion of a person from any of Her Majesty's Forces, does not without reasonable excuse inform his superior officer forthwith, or
  2. fails to take any steps in his power to cause the apprehension of a person whom he knows, or has reasonable grounds to believe, to be a deserter,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

(2) The statement of the offence in a charge under section 89 should be in one of the following forms:

  1. Text Version - Statement of the offence - 103.22a

  2. Text Version - Statement of the offence - 103.22b

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SPECIMEN CHARGES

Para. 89(a)
N.D.A.

BEING AWARE OF THE INTENDED DESERTION OF A PERSON FROM HER MAJESTY’S FORCES, DID NOT WITHOUT REASONABLE EXCUSE INFORM HIS SUPERIOR OFFICER FORTHWITH

Particulars: In that he, on (date), at (indicate place of offence), knowing that (number, rank and name), intended to desert Her Majesty’s Forces, did not inform his superior officer, (number, rank and name), of that fact forthwith.


 

Para. 89(b)
N.D.A.

FAILED TO TAKE STEPS IN HIS POWER TO CAUSE THE APPREHENSION OF A PERSON WHOM HE KNEW TO BE A DESERTER

Particulars: In that he, on (date), at (indicate place of offence), while acting as train patrol, knowing that (number, rank and name), was a deserter, on encountering the said (rank and name), failed to place him under arrest.


(C)

NOTES

(A) The time at which the accused person became aware of the desertion or intended desertion, and, if he gave notice to his superior officer, the time at which he gave notice, are material and should be specified in the particulars of the charge.

(B) If a charge is laid under paragraph 89(b) of the National Defence Act, a statement must be made in the particulars of the charge as to the steps which were within the power of the accused person to take in order to cause the deserter to be apprehended.

(C)

103.23 - ABSENCE WITHOUT LEAVE

(1) Section 90 of the National Defence Act provides:

"90. (1) Every person who absents himself without leave is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

(2) A person absents himself without leave who

  1. without authority leaves his place of duty;
  2. without authority is absent from his place of duty; or
  3. having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized."

(2) The statement of the offence in a charge under section 90 should be in the following form:

Absented himself without leave.

SPECIMEN CHARGES

Sec. 90
N.D.A.

ABSENTED HIMSELF WITHOUT LEAVE

Particulars: In that he, at (time) hours, (date), without authority was absent from (unit) and remained absent until (time) hours, (date).


 

Sec. 90
N.D.A.

ABSENTED HIMSELF WITHOUT LEAVE

Particulars: In that he, on (date), at (indicate place of offence), without authority was absent from colour-hoisting parade.


 

Sec. 90
N.D.A.

ABSENTED HIMSELF WITHOUT LEAVE

Particulars: In that he, failed to return to (unit), at (time) hours, (date), on expiration of his annual leave, and remained absent without authority until (time) hours, (date).


(C)

NOTES

(A) The offence of absence without leave is defined in subsection 90(2) of the National Defence Act. When the offence has been committed it is regarded as continuing until such time as the absentee returns to the absentee's place of duty or until the absence ceases to be "without authority". Accordingly, the circumstances under which it was committed, the length of the absence and the circumstances of its termination, e.g., by apprehension or surrender, are material to the gravity of the offence and taken into consideration for this purpose and for administrative purposes, having regard to the effect on pay which is a consequence of a conviction for this offence.

(B) A person who escapes from custody and thus absents himself without leave may legally be charged and convicted of both offences; but as a rule, it is preferable to charge only the absence without leave, alleging in the particulars, for purposes of increasing the gravity of the offence, that it was committed "when in custody".

(C) An officer or non-commissioned member charged with desertion or attempted desertion may, under section 133 of the National Defence Act (see article 103.62 - Conviction of Related or Less Offences), be found guilty of absence without leave; but if charged only with absence without leave he cannot be convicted of desertion or attempted desertion.

DRAFTING CHARGES

(D) The particulars should state the date that the absence began and the date that it ended and, if significant for the purpose of proving a day's absence, the hour of departure and return.

(E) Where a person is charged with being absent from a particular parade, that parade should be specified in the statement of particulars. (It must be proved that the accused knew or should have known of the time and place appointed by the commanding officer, but the place for the parade need not have been specifically mentioned if it can be proved that it was well understood and known to the accused. Such a charge should seldom be preferred unlessorders stating both the time and place of parade can be produced.)

INTENT

(F) It is not necessary to establish that an absentee had a specific intent to commit the offence. As long as there are no circumstances amounting in law to a defence (and it may be so presumed until it is raised by the defence) the fact of the absence without authority together with the knowledge the absentee had or is presumed to have had as to his duty to be where required if wanted is sufficient to establish a guilty state of mind, whether the absence was deliberate or arose from forgetfulness, carelessness or negligence.

TERMS USED IN DEFINITION

(G) What the accused's "place of duty" was is a question of fact to be decided by the service tribunal from the evidence submitted to it and the service tribunal must call upon military knowledge, practice and custom to determine the issue in each case. Normally it is the duty of an officer or non-commissioned member to be with his unit at a place where he ought to be found if wanted or where his duties take him. However he may have a place of duty with a particular part of the unit at a particular time and place and his duty is to be there at that time. Subject to Note (1), it is customary to regard an officer or non-commissioned member in hospital as being at his place of duty.

(H) The expression "without authority" in section 90 of the National Defence Act signifies that the accused was absent with neither the approval of a competent superior nor the sanction of law, practice or custom. It has been the practice not to regard a non-commissioned member as absent without authority who while on authorized leave becomes too ill to travel without severely affecting his health or is detained by civil or service authorities and thus unable to report on time, unless he fails to rejoin at the earliest opportunity after his recovery or release from custody and then regard him as being absent only from the date on which he could have returned.

TERMINATION

(I) Absence without leave terminates when an absentee returns to the place where for the time being the absentee has a duty to be. It has been customary to consider absence as terminated on the date an absentee finally surrenders to or is apprehended by civil or service authorities, or is admitted to a military hospital, and normally this is the date which should be taken. An absentee who is admitted to a civilian hospital or is arrested by the civil police and committed to civil custody is generally regarded as having ceased to be absent on the date of his admission or arrest but if he does not rejoin his unit as soon as practicable after discharge from hospital or release from civil custody, he may be regarded as having been absent without leave from the time he first was absent until he is apprehended or surrenders.

(J) The mere reporting by an absentee to a civil or military authority will not of itself terminate absence without leave nor will the mere giving of orders to an absentee to return to his unit. If, however, on reporting the absentee is taken into custody or is treated under service orders, custom or practice as having ceased to be absent, his absence will be considered to have terminated.

DRAFTING CHARGES

(K) Illustrations of circumstances which might be considered not to excuse an offence under this section:

  1. the lack of orders to report when an officer or non-commissioned member has been told the orders as to reporting will be sent to him at home. (There is a duty to ask for orders should none reach him within a reasonable time and the period between the date any honest and reasonable person would recognize as the date such orders should normally have arrived and the date of actually reporting may be regarded as absence without leave);
  2. getting so drunk as to be unable to return in time;
  3. going to sleep when returning to duty, thereby being carried past his station and unable to get back in time;
  4. losing his railway ticket and having insufficient money to get back in time;
  5. failing to leave home in time to be on parade;
  6. failing to catch a train to return from leave on time;
  7. failing to obey an order of which he ought to have been aware (although misapprehension arising from want of clarity in the order may be ground for excuse).

(C)


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103.24 - FALSE STATEMENT IN RESPECT OF LEAVE

(1) Section 91 of the National Defence Act provides:

"91. Every person who knowingly makes a false statement in respect of prolongation of leave of absence is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

(2) The statement of the offence in a charge under section 91 should be in the following form:

SPECIMEN CHARGE

Sec. 91
N.D.A.

KNOWINGLY MADE A FALSE STATEMENT IN RESPECT OF PROLONGATION OF LEAVE OF ABSENCE

Particulars: In that he, on (date), sent a telegram from (place), to the commanding officer of (unit), stating that his wife was seriously ill and that he therefore requested a two-week extension of annual leave, knowing that his wife was not in fact ill.


(C)

NOTE

Section 91 of the National Defence Act applies only to a false statement made in order to obtain extension of leave; for example, a false statement to the effect that a close relative is seriously ill and, therefore, additional leave is required. It does not relate to false excuses for over-staying leave.

(C)

103.25 - SCANDALOUS CONDUCT BY OFFICERS

(1) Section 92 of the National Defence Act provides:

"92. Every officer who behaves in a scandalous manner unbecoming an officer is guilty of an offence and on conviction shall suffer dismissal with disgrace from Her Majesty's service or dismissal from Her Majesty's service."

(2) The statement of the offence in a charge under section 92 should be in the following form:

SPECIMEN CHARGES

Sec. 92
N.D.A.

BEHAVED IN A SCANDALOUS MANNER UNBECOMING AN OFFICER

Particulars: In that he, on (date), at (indicate pace of offence), at the Annual Charity Ball, when in uniform, used offensive language to (name), the wife of the Ambassador of ________ and behaved in a drunken and riotous manner.


(C)

NOTES

(A) It is to be noted that this offence relates only to officers and that the service tribunal may only impose one or the other of two prescribed punishments on conviction. An alternative charge might be laid under section 129 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

(B) Scandalous conduct may be either military or social; but a charge based upon social misconduct should not he preferred under this section unless it is so grave as to warrant dismissal with disgrace or dismissal from Her Majesty's service. (8 October 1998)

(C) [8 October 1998]

103.26 - CRUEL OR DISGRACEFUL CONDUCT

(1) Section 93 of the National Defence Act provides:

"93. Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment."

(2) The statement of the offence in a charge under section 93 should be in the following form:

  • Text Version - Statement of the offence - 103.26

  • SPECIMEN CHARGES

    Sec. 93
    N.D.A.

    BEHAVED IN A CRUEL MANNER

    Particulars: In that he, on (date), at (indicate place of offence), buned a dog alive.


    (C)

    NOTE

    Offences involving indecency or unnatural conduct might he charged under this section but, as a general rule, should be charged under section 130 of the National Defence Act (see article 103.61 - Offences Against other Canadian Law), that is to say, the service offence should be the offence prescribed in the Criminal Code.

    (C)

    103.27 - TRAITOROUS OR DISLOYAL UTTERANCES

    (1) Section 94 of the National Defence Act provides:

    "94. Every person who uses traitorous or disloyal words regarding Her Majesty is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment."

    (2) The statement of the offence in a charge under section 94 should be in the following form:

    Text Version - Statement of the offence - 103.27

    NOTES

    (A) The words alleged to have been used may be either spoken, written, or printed.

    (B) The words used, or their substance, must be set out in the particulars of the charge.

    (C)

    103.28 - ABUSE OF SUBORDINATES

    (1) Section 95 of the National Defence Act provides:

    "95. Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 95 should be in the following form:

    Text Version - Statement of the offence - 103.28

    SPECIMEN CHARGE

    Sec. 95
    N.D.A.

    STRUCK A PERSON WHO BY REASON OF RANK WAS SUBORDINATE TO HIM

    Particulars: In that he, on (date), at (indicate place of offence), struck with his fist (number, rank and name), in the face.


    (C)

    NOTES

    (A) Striking a sentinel may be a more serious offence under section 75 of the National Defence Act (see article 103.08 - Offences Related to Security).

    (B) "Strikes" means that a blow is struck with the hand or fist or something which is held in the hand. Violence other than striking, such as butting with the head, and kicking, is included, for the purposes of section 95 of the National Defence Act, under "ill-treatment".

    (C)


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    103.29 - FALSE ACCUSATIONS OR STATEMENTS

    (1) Section 96 of the National Defence Act provides:

    "96. Every person who

    1. makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, or
    2. when seeking redress under section 29, knowingly makes a false statement affecting the character of an officer or non- commissioned member or knowingly, in respect of the redress so sought, suppresses any material fact

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.»

    (2) The statement of the offence in a charge under section 96 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.29a

    2. Text Version - Statement of the offence - 103.29b

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    SPECIMEN CHARGES

    Para. 96(a)
    N.D.A.

    KNOWINGLY MADE A FALSE ACCUSATION AGAINST A NON-COMMISSIONED MEMBER

    Particulars: In that he, on (date), at (indicate place of offence), when appearing before (rank and name), (unit), to be tried summarily stated: "(rank and name), consistently gives false evidence at summary trials when he has a grudge against the person on charge" or words to that effect, knowing such statement to be false.


     

    Para. 96(b)
    N.D.A.

    WHEN SEEKING REDRESS UNDER SECTION 29 OF THE NATIONAL DEFENCE ACT, KNOWINGLY SUPPRESSED A MATERIAL FACT

    Particulars: In that he, on (date), at (indicate place of offence), when complaining orally to (rank and name), his commanding officer, that he had been denied tropical outfit grant to which he was entitled under the regulations, failed to inform his commanding officer that he had been paid that grant on a previous occasion.


    (C)

    NOTES

    (A) A mere untrue statement, not involving an accusation. (e.g. a statement as to the age of a person), is not within the meaning of subparagraph 96(a) of the National Defence Act.

    (B) In the case of a charge contrary to paragraph 96(b) of the National Defence Act, the prosecutor must adduce evidence of knowledge. If the false statement is established, however, the service tribunal may infer knowledge from the circumstances.

    (C)

    103.30 - DRUNKENNESS

    (1) Section 97 of the National Defence Act provides:

    "97. (1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.

    (2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,

    1. is unfit to be entrusted with any duty that the person is or may be required to perform; or
    2. behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty's service."

    (2) The statement of the offence in a charge under section 97 should be in the following form:

    Drunkenness

    SPECIMEN CHARGE

    Sec. 97(a)
    N.D.A.

    DRUNKENNESS

    Particulars: In that he, on (date), at (indicate place of offence), (while on duty in the orderly room of (unit),) was drunk.


    (C)

    NOTES

    (A) The fact that the accused person was on duty at the time aggravates the offence of drunkenness; but, in general, when a person is unexpectedly called on to perform some duty for which the person has not been warned and is found to be unfit for duty by reason of excessive indulgence in alcohol, the person should be dealt with as for drunkenness not on duty.

    (B) It is not necessary for the prosecutor to prove that the accused, through liquor or a drug, was in any extreme condition nor is the accused entitled to an acquittal by showing that on the occasion in question he could, or actually did, do some duty without manifest failure. In short, if the service tribunal, upon considering all of the evidence, comes to the conclusion that he was, through the effect of liquor or a drug unfit to be entrusted with his duty, he may be found guilty on a charge under section 97 of the National Defence Act.

    (C) In a case of this nature, should there be any doubt as to the reason for the accused's condition, it is desirable that the opinion of a medical officer be obtained at once in order that the medical officer may be able to testify as to whether the condition of the accused is attributable to illness or to the influence of alcohol or a drug.

    (D) A witness testifying that an accused person was drunk must state the reasons for his opinion.

    (C)


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    103.31 - MALINGERING OR MAIMING

    (1) Section 98 of the National Defence Act provides:

    "98. Every person who

    1. malingers or feigns or produces disease or infirmity,
    2. aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or
    3. wilfully mains or injures himself or any other person who is a member of any of Her Majesty's Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,

    is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment."

    (2) The statement of the offence in a charge under section 98 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.31a

    2. Text Version - Statement of the offence - 103.31b

    3. Text Version - Statement of the offence - 103.31c

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    SPECIMEN CHARGES

    Para. 98(a)
    N.D.A.

    MALINGERING

    Particulars: In that he, on (date), at (indicate place of offence), with the intention of evading his duties, did not disclose that he had recovered the use of his right arm.


     

    Para. 98(b)
    N.D.A.

    FEIGNED INFIRMITY

    Particulars: In that he, on (date), at (indicate place of offence), pretended to (number, rank and name), a medical officer of the Canadian Forces that he was suffering from a wrenched back, whereas, as he knew, he was not so suffering.


     

    Para. 98(c)
    N.D.A.

    WHEN ON ACTIVE SERVICE, DELAYED THE CURE OF DISEASE BY WILFUL DISOBEDIENCE OF ORDERS

    Particulars: In that he, on (date), at (indicate place of offence), when under medical treatment for a kidney infection and under orders not to consume alcoholic beverages for the duration of his treatment, consumed a portion of a bottle of whiskey, thereby delaying the cure of his disease.


     

    Para. 98(d)
    N.D.A.

    WILFULLY CAUSED HIMSELF TO BE MAIMED BY ANOTHER PERSON WITH INTENT THEREBY TO RENDER HIMSELF UNFIT FOR SERVICE

    Particulars: In that he, on (date), at (indicate place of offence), procured (number, rank and name), to cut off the index finger of his right hand with an axe, with intent to render himself unfit for service.


    (C)

    NOTES

    (A) A charge of malingering should be laid only where the accused has pretended illness or infirmity in order to escape duty.

    (B) A charge of feigning disease or infirmity should be laid only where the accused exhibits appearances resembling genuine symptoms which, to his knowledge, are not due to such disease or infirmity, but have been induced artificially for purposes of deceit, for example, simulating fits or mental disease .

    (C) The words "wilful" in paragraph 98(b) and "wilfully" in paragraph 98(c) of the National Defence Act signify that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (D) The particulars of a charge under section 98 of the National Defence Act should show in what way an accused person has malingered or what disease or infirmity he has been feigned or produced, or what particular injury has been inflicted, or of what misconduct or wilful disobedience alleged to have been committed.

    (E) The word "injures" relates to a temporary condition whereas the word "maims" relates to a permanent impairment.

    (F) The expression "active service" refers to the situation that exists when the Governor in Council exercises its powers under section 31 of the National Defence Act to place the Canadian Forces, or any part thereof or any officer or non-commissioned member thereof, on active service.

    (C)


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    103.32 - DETAINING UNNECESSARILY OR FAILING TO BRING UP FOR INVESTIGATION

    (1) Section 99 of the National Defence Act provides:

    "99. Every person who unnecessarily detains any other person in arrest or confinement without bringing him to trial, or fails to bring that other person's case before the proper authority for investigation, is guilty of an offence and on conviction is liable to imprisonment for less than two years to less punishment."

    (2) The statement of the offence in a charge under section 99 should be in one of the following forms:

    Text Version - Statement of the offence - 103.32

    Top of Page

    SPECIMEN CHARGE

    Sec. 99
    N.D.A.

    UNNECESSARILY DETAINED ANOTHER PERSON IN ARREST WITHOUT BRINGING HIM TO TRIAL

    Particulars: In that he, on (date), at (indicate place of offence), having placed (number, rank and name), in custody on (date), did not take any steps to bring (number, rank and name), to trial. (1 September 1999)


    (C) [1 September 1999]

    NOTE

    The prosecutor must prove the facts which will either show or enable the service tribunal to infer that the accused could have brought the person in arrest or confinement to trial or brought his case before the proper authority for investigation.

    (C)

    103.33 - SETTING FREE WITHOUT AUTHORITY OR ALLOWING OR ASSISTING ESCAPE

    (1) Section 100 of the National Defence Act provides:

    "100. Every person who

    1. without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody,
    2. negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody, or
    3. assists any person in escaping or in attempting to escape from custody,

    is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for a term not exceeding seven years or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 100 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.33a

    2. Text Version - Statement of the offence - 103.33b

    3. Text Version - Statement of the offence - 103.33c

    Top of Page

    SPECIMEN CHARGES

    Para. 100(a)
    N.D.A.

    WITHOUT AUTHORITY SET FREE A PERSON IN CUSTODY

    Particulars: In that he, on (date), at (indicate place of offence), without authority released (number, rank and name), from custody. ( 1 September 1999)


     

    Para. 100(b)
    N.D.A.

    WILFULLY ALLOWED TO ESCAPE A PERSON WHOM IT WAS HIS DUTY TO GUARD

    Particulars: In that he, on (date), at (indicate place of offence), while on duty as guard wilfully left unlocked the door of the cell in which (number, rank and name), was confined thereby allowing him to escape.


    Para. 100(c)
    N.D.A.

    WILFULLY ASSISTED A PERSON TO ATTEMPT TO ESCAPE FROM CUSTODY

    Particulars: In that he on (date), at (indicate place of offence), diverted the attention of (number, rank and name), who, at that time, had custody of (number, rank and name), thereby enabling (rank and name of person in custody), to leave his room in the detention barracks in an attempt to escape.


    (C) [1 September 1999]

    NOTES

    (A) The expression "without authority" in paragraph 100(a) of the National Defence Act signifies that the accused did or omitted to do something without the approval of a competent superior or without the sanction of law, practice, or custom. If proof is given that the person in custody was set free, the onus is on the accused to show his authority. The service tribunal may use its military knowledge with respect to whether the authority alleged was or was not sufficient.

    (B) The word "negligently" in paragraph 100(b) of the National Defence Act signifies that the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (C) The word "wilfully" in paragraph 100(b) of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (D) In order properly to found a charge under paragraph 100(c) of the National Defence Act of assisting a person in attempting to escape, it must be proven that the person assisted actually was "attempting". To that end, the following elements must be established:

    1. The person assisted had an intent to escape.
    2. An act or omission by the person assisted towards the commission of the offence of escaping.

    An intent alone is not sufficient if nothing is done to carry it into effect. A distinction must, however, be drawn between acts or omissions toward the commission of the offence and those which are mere preparations. It is not possible to draw a clear line of distinction but, in general, preparation consists of devising or arranging the means for the commission of an offence while, on the other hand, an act or omission sufficient to support a charge of attempting must involve a direct movement towards the commission of the offence after the preparations have been made. For example, a person having an intent to escape might arrange a hiding place in advance. That arrangement would merely be a stage in his preparations and not such an act as to justify a charge of attempting. An example of an act justifying a charge of attempting to escape would be found where a person tried to elude his escort.

    (C)


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    103.34 - ESCAPE FROM CUSTODY

    (1) Section 101 of the National Defence Act provides:

    "101. Every person who, being in arrest or confinement or in prison or otherwise in lawful custody, escapes or attempts to escape is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 101 should be in the following form:

    Text Version - Statement of the offence - 103.34

    SPECIMEN CHARGE

    Sec. 101
    N.D.A.

    BEING IN PRISON, ESCAPED

    Particulars: In that he, on (date), at (indicate place of offence), while held in (name) prison, escaped therefrom.


    (C)

    NOTES

    (A) An accused may be convicted under section 101 of the National Defence Act for escaping from any lawful custody, for example, from a civilian who under section 252 of the National Defence Act has arrested him as a deserter.

    (B) An escape may be either with or without force or artifice and either with or without the consent of the custodian.

    (C) A person who escapes from custody and thus absents himself without leave may legally be charged and convicted of both offences; but, as a rule, it is preferable to charge only the absence without leave, alleging in the particulars, for purposes of increasing the gravity of the offence, that it was committed "when in custody".

    (D) There are two essential elements of an attempt to escape:

    1. an intent to escape.
    2. an act or omission towards the commission of the offence.

      An intent alone is not sufficient if nothing was done to carry it into effect a distinction must, however, be drawn between acts or omissions toward the commission of an offence and those which are mere preparation. It is not possible to draw a clear line of distinction but, in general, preparation consists in devising or arranging the means for the commission of an offence while, on the other hand, an act or omission sufficient to support a charge of attempting must involve a direct movement towards the commission of an offence after the preparations have been made. For example, a person having an intent to escape, might arrange a hiding place in advance. That arrangement would merely be a stage in his preparations and not such an act as to justify a charge of attempting. An example of an act justifying a charge of attempting to escape would be found where a person tries to elude his escort.

    (C)

    103.345 - FAILING TO COMPLY WITH CONDITIONS

    (1) Section 101.1 of the National Defence Act provides

    "101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under Division 3, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 101.1 should be in one of the following forms:

    Failed to comply with a condition imposed under Division 3

    Text Version - Statement of the offence - 103.345

    SPECIMEN CHARGES

    Sec. 101.1
    N.D.A.

    FAILED TO COMPLY WITH A CONDITION IMPOSED UNDER DIVISION 3

    Particulars: In that he, on (date), at (indicate place of offence), without lawful excuse, failed to report to the Base Duty Officer at 1800 hours, a condition of release imposed by his commanding officer under Division 3 of the Code of Service Discipline.


     

    Sec. 101.1
    N.D.A.

    FAILED TO COMPLY WITH A CONDITION OF AN UNDERTAKING GIVEN UNDER DIVISION 3

    Particulars: In that he, on (date), at (indicate place of offence), without lawful excuse, failed to report to the Base Duty Officer at 1800 hours, a condition of an undertaking of release given under Division 3 of the Code of Service Discipline.


    (C) [1 September 1999]


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    103.35 - HINDERING ARREST OR CONFINEMENT OR WITHHOLDING ASSISTANCE WHEN CALLED ON

    (1) Section 102 of the National Defence Act provides:

    "102. Every person who

    1. resists or wilfully obstructs an officer or non-commissioned member in the performance of any duty pertaining to the arrest, custody or confinement of a person subject to the Code of Service Discipline, or
    2. when called on, refuses or neglects to assist an officer or non-commissioned member in the performance of any such duty

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 102 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.35a

    2. Text Version - Statement of the offence - 103.35b

    Top of Page

    SPECIMEN CHARGES

    Para. 102(a)
    N.D.A.

    WILFULLY OBSTRUCTED AN OFFICER IN PERFORMING A DUTY PERTAINING TO THE CONFINEMENT OF A PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), when (number, rank and name), was conveying (number, rank and name), a member of the Canadian Forces, to a place of confinement, interposed himself between these two persons in such a fashion as to obstruct the conveying of (number, rank and name), to the place of confinement.


     

    Para. 102(b)
    N.D.A.

    WHEN CALLED UPON, REFUSED TO ASSIST A NON-COMMISSIONED MEMBER IN PERFORMING A DUTY PERTAINING TO THE ARREST OF A PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), when called upon by (number, rank and name), a member of the military police, to assist him in apprehending (number, rank and name), a member of the Canadian Forces, refused to assist.


    (C)

    NOTE

    The word "wilfully" in subparagraph 102(a) of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (C)


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    103.36 - WITHHOLDING DELIVERY OVER OR ASSISTANCE TO CIVIL POWER

    (1) Section 103 of the National Defence Act provides:

    "103. Every person who neglects or refuses to deliver over an officer or non-commissioned member to the civil power, pursuant to a warrant in that behalf, or to assist in the lawful apprehension of an officer or non-commissioned member accused of an offence punishable by a civil court is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 103 should be in one of the following forms:

    Text Version - Statement of the offence - 103.36

    SPECIMEN CHARGE

    Sec. 103
    N.D.A.

    REFUSED TO DELIVER OVER A NON COMMISSIONED MEMBER TO THE CIVIL POWER, PURSUANT TO A WARRANT IN THAT BEHALF

    Particulars: In that he, on (date), at (indicate place of offence), when commanding officer of (unit), refused to deliver over to Constable A.B., of the Royal Canadian Mounted Police (number, rank and name), a non-commissioned member of his unit, for whose arrest on a charge of manslaughter a warrant had been issued


    (C)

    NOTE

    Before an officer or non-commissioned member delivers over a person to the civil power, he should require to see the warrant or other authority for the delivery over.

    (C)


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    103.37 - LOSING, STRANDING OR HAZARDING VESSELS

    (1) Section 104 of the National Defence Act provides:

    "104. Every person who wilfully or negligently or through other default loses, strands or hazards, or suffers to be lost, stranded or hazarded, any of Her Majesty's Canadian ships or other vessels of the Canadian Forces is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

    (2) The statement of the offence in a charge under section 104 should be in one of the following forms:

    Text Version - Statement of the offence - 103.37

    SPECIMEN CHARGE

    Sec. 104
    N.D.A.

    NEGLIGENTLY STRANDED ONE OF THE VESSELS OF THE CANADIAN FORCES

    Particulars: In that he, on (date), at or about (indicate place of offence), by failing to keep a proper lookout did allow one of the motorboats of the Air Search and Rescue Unit to become stranded on a rock.


    (C)

    NOTES

    (A) The word "wilfully" in section 104 of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did and was not acting under compulsion.

    (B) The word "negligently" in section 104 of the National Defence Act signifies that the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (C) The word "hazards" in section 104 of the National Defence Act means to endanger or put to the risk of loss or harm.

    (C)

    [103.38: repealed on 1 September 1999]

    103.385 - DISOBEDIENCE OF CAPTAIN'S ORDERS - SHIPS

    (1) Section 106 of the National Defence Act provides:

    "106. (1) Every person who, when in a ship, disobeys any lawful command given by the captain of the ship in relation to the navigation or handling of the ship or affecting the safety of the ship, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

    (2) For the purposes of this section, every person of whatever rank shall, when the person is in a ship, be under the command, in respect of all matters relating to the navigation or handling of the ship or affecting the safety of the ship of the captain of the ship, whether or not the captain is subject to the Code of Service Discipline."

    (2) The statement of the offence in a charge under section 106 should be in one of the following forms:

    Text Version - Statement of the offence - 103.385

    SPECIMEN CHARGE

    Sec. 106
    N.D.A.

    WHEN IN A SHIP DISOBEYED A LAWFUL COMMAND GIVEN BY THE CAPTAIN OF THE SHIP IN RELATION TO THE HANDLING OF THE SHIP

    Particulars: In that he, on (date), at (indicate place of offence), while officer of the watch of Her Majesty’s Canadian Ship (name), having been ordered by (number, rank and name), the captain of the said ship to maintain a station 50 cables astern of the ship next preceding, failed to do so and allowed the ship to close to a distance of 10 cables on the ship next preceding.


    (C)

    NOTE

    The captain of a ship would be empowered to issue an order to a senior passenger but only where the subject matter of the order has some bearing upon navigation or handling of the ship or affecting its safety.

    (C)


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    103.39 - WRONGFUL ACTS IN RELATION TO AIRCRAFT OR AIRCRAFT MATERIAL

    (1) Section 107 of the National Defence Act provides:

    "107. Every person who

    1. in the use of or in relation to any aircraft or aircraft material, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause loss of life or bodily injury to any person,
    2. wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission results or is likely to result in damage to or destruction or loss of any of Her Majesty's aircraft or aircraft material or of aircraft or aircraft material of any forces cooperating with Her Majesty's Forces, or
    3. during a state of war wilfully or negligently causes the sequestration by or under the authority of a neutral state or the destruction in a neutral state of any of Her Majesty's aircraft or of aircraft of any forces cooperating with Her Majesty's Forces,

    is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 107 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.39a

    2. Text Version - Statement of the offence - 103.39b

    3. Text Version - Statement of the offence - 103.39c

    Top of Page

    SPECIMEN CHARGES

    Para. 107(a)
    N.D.A.

    IN THE USE OF AN AIRCRAFT, CONTRARY TO ORDERS, DID AN ACT WHICH ACT CAUSED LOSS OF LIFE TO A PERSON

    Particulars: In that he, on (date), at (indicate place of offence), while pilot of Her Majesty’s aircraft (type and number or letters), unnecessarily and without authority, flew the said aircraft at a height of less than _____ meters above the ground level, contrary to the provisions of Flying Orders for _____ (date), section _____ paragraph _____ as a consequence of which the said aircraft came into contact with a vehicle driven by (name), of (residence), causing the death of the said (name).


     

    Para. 107(b)
    N.D.A.

    NEGLIGENTLY DID AN ACT, WHICH ACT RESULTED IN DESTRUCTION OF HER MAJESTY’S AIRCRAFT

    Particulars: In that he, on (date), at (indicate place of offence), while pilot of Her Majesty’s aircraft (type and number or letters), negligently allowed the said aircraft to enter an inverted spin, which act resulted in the crash and destruction of that aircraft.


     

    Para. 107(c)
    N.D.A.

    DURING A STATE OF WAR, WILFULLY CAUSED THE SEQUESTRATION BY A NEUTRAL STATE OF ONE OF HER MAJESTY’S AIRCRAFT

    Particulars: In that he, on (date), at (indicate place of offence), while acting as pilot of Her Majesty’s aircraft (type and number or letters), when flying over the territory of the state of _____, voluntarily descended and landed in the said territory, without due occasion, and thereby caused the sequestration by the state of _____, of the said aircraft.


     

    NOTES

    (A) The word "wilfully" in section 107 of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (B) The word "negligently" in section 107 of the National Defence Act signifies that the alleged offender either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (C) The word "sequestration" in paragraph 107© of the National Defence Act refers to a principle of international law whereby a neutral state may seize an aircraft of a belligerent which come within its territorial limits.

    (D) The expression "any person" as used in paragraph 107(a) of the National Defence Act includes the accused.

    (C)


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    103.40 - SIGNING INACCURATE CERTIFICATE

    (1) Section 108 of the National Defence Act provides:

    "108. Every person who signs an inaccurate certificate in relation to an aircraft or aircraft material without taking reasonable steps to ensure that it was accurate, the proof of taking which steps lies on that person, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 108 should be in the following form:

    Text Version - Statement of the offence - 103.40

    SPECIMEN CHARGE

    Sec. 108
    N.D.A.

    SIGNED AN INACCURATE CERTIFICATE IN RELATION TO AIRCRAFT MATERIAL

    Particulars: In that he, on (date), at (indicate place of offence), signed Form _____, certifying that aircraft _____, (type and number or letters), had been completely re-armed with rockets, when in fact the aircraft at that time had not been so re-armed.


    (C)

    103.41 - LOW FLYING

    (1) Section 109 of the National Defence Act provides:

    "109. Every person who flies on aircraft at a height less than the minimum height authorized in the circumstances is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 109 should be in the following form:

    Flew an aircraft at a height less than the minimum height authorized in the circumstances.

    SPECIMEN CHARGE

    Sec. 109
    N.D.A.

    FLEW AN AIRCRAFT AT A HEIGHT LESS THAN THE MINIMUM HEIGHT AUTHORIZED IN THE CIRCUMSTANCES

    Particulars: In that he, on (date), at about (hours), at or about (indicate place of offence), while acting as pilot of aircraft (type and numbers or letters), unnecessarily and without authority, flew the said aircraft at a height of less than _______ meters above ground level, contrary to section _______ , paragraph ______ _, of _______ Standing Orders issued by _______.


     

    NOTE

    The phrase "authorized in the circumstances" in section 109 of the National Defence Act refers to service orders under which the minimum altitudes are specified. These orders may emanate from National Defence Headquarters, the headquarters of a lower formation or in certain circumstances from a unit commander or other superior.

    (C)

    103.42 - DISOBEDIENCE OF CAPTAIN'S ORDERS - AIRCRAFT

    (1) Section 110 of the National Defence Act provides:

    "110. (1) Every person who, when in an aircraft, disobeys any lawful command given by the captain of the aircraft in relation to the flying or handling of the aircraft or affecting the safety of the aircraft, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

    (2) For the purposes of this section,

    1. every person of whatever rank shall, when the person is in an aircraft, be under the command, in respect of all matters relating to the flying or handling of the aircraft or affecting the safety of the aircraft, of the captain of the aircraft, whether or not the captain is subject to the Code of Service Discipline; and
    2. if the aircraft is a glider and is being towed by another aircraft, the captain of the glider shall, so long as the glider is being towed, be under the command, in respect of all matters relating to the flying or handling of the glider or affecting the safety of the glider, of the captain of the towing aircraft, whether or not the captain of the towing aircraft is subject to the Code of Service Discipline."

    (2) The statement of the offence in a charge under section 110 should be in one of the following forms:

    Text Version - Statement of the offence - 103.42

    SPECIMEN CHARGE

    Sec. 110
    N.D.A.

    WHEN IN AN AIRCRAFT DISOBEYED A LAWFUL COMMAND GIVEN BY THE CAPTAIN OF THE AIRCRAFT IN RELATION TO THE FLYING OF THE AIRCRAFT

    Particulars: In that he, on (date), at (indicate place of offence), while acting as second pilot of aircraft (type and number or letters), when ordered by (number, rank and name), the captain of the said aircraft to maintain a constant air speed of 400 knots, failed to do so and allowed the speed of the aircraft to fall to 250 knots.


     

    NOTES

    (A) The captain of an aircraft would be empowered to issue an order to a senior passenger but only where the subject matter of the order has some bearing upon the flying or handling of the aircraft or affecting its safety.

    (B) As to persons in a glider the authority to issue lawful commands would rest with the captain of the glider in respect of matters affecting the flying or handling of the glider or its safety, and the question as to who would have the authority to issue commands to airborne troops in connection with other matters would be determined by the circumstances of the case, that is to say, the identity of the officer designated to be in command of the troops or who is in command of the troops by virtue of his appointment or rank.

    (C)


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    103.43 - IMPROPER DRIVING OF VEHICLES

    (1) Section 111 of the National Defence Act provides:

    "111. (1) Every person who

    1. drives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or, having charge of and being in or on such a vehicle, causes or by wilful neglect permits it to be so driven,
    2. while the person's ability to drive a vehicle of the Canadian Forces is impaired by alcohol or a drug, drives or attempts to drive such a vehicle, whether it is in motion or not, or
    3. having charge of a vehicle of the Canadian Forces, knowingly permits it to be driven by a person whose ability to drive such a vehicle is impaired by alcohol or a drug,

    is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

    (2) For the purposes of paragraph (1)(b), a person who occupies the seat ordinarily occupied by a driver of a vehicle shall be deemed to have attempted to drive the vehicle, unless that person establishes that he did not enter or mount the vehicle for the purpose of setting it in motion."

    (2) The statement of the offence in a charge under section 111 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.43a

    2. Text Version - Statement of the offence - 103.43b

    3. Text Version - Statement of the offence - 103.43c

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    SPECIMEN CHARGES

    Para. 111(1)(a)
    N.D.A.

    DROVE A VEHICLE OF THE CANADIAN FORCES IN A MANNER THAT WAS DANGEROUS TO ANY PERSON OR PROPERTY HAVING REGARD TO ALL THE CIRCUMSTANCES

    Particulars: In that he, on (date), at (indicate place of offence), drove (type and number), a vehicle of the Canadian Forces, at a speed in excess of 80 kilometres per hour over a winding road covered in part with ice


     

    Para. 111(1)(b)
    N.D.A.

    WHILE HIS ABILITY TO DRIVE WAS IMPAIRED BY ALCOHOL, DROVE A VEHICLE OF THE CANADIAN FORCES

    Particulars: In that he, on (date), at (indicate place of offence), drove (type and number), a vehicle of the Canadian Forces, while his ability to drive such vehicle was impaired by alcohol.


     

    Para. 111(1)(c)
    N.D.A.

    HAVING CHARGE OF A VEHICLE OF THE CANADIAN FORCES KNOWINGLY PERMITTED IT TO BE DRIVEN BY A PERSON WHOSE ABILITY TO DRIVE SUCH VEHICLE WAS IMPAIRED BY ALCOHOL

    Particulars: In that he, on (date), at (indicate place of offence), while in charge of (type and number), a vehicle of the Canadian Eorces, permitted (number, rank and name), to drive the said vehicle, knowing that the said (number, rank and name), had been drinking alcoholic beverages.


    (C)

    NOTES

    (A) The word "wilful" in paragraph 111(1)(a) of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (B) The expression "having charge of" in paragraphs 111(1)(a) and (c) of the National Defence Act has the meaning attached to the phrase by military usage or custom.

    (C) The expression "any person" as used in paragraph 111(1)(a) of the National Defence Act includes the accused.

    (C)


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    103.44 - UNAUTHORIZED USE OF VEHICLES

    (1) Section 112 of the National Defence Act provides:

    “112. Every person who

    1. uses a vehicle of the Canadian Forces for an unauthorized purpose,
    2. without authority uses a vehicle of the Canadian Forces for any purpose, or
    3. uses a vehicle of the Canadian Forces contrary to any regulation, order or instruction,

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 112 should be in one of the following forms:

    1. Used a vehicle of the Canadian Forces for an unauthorized purpose
    2. Without authority, used a vehicle of the Canadian Forces.
    3. Text Version - Statement of the offence - 103.44c

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    SPECIMEN CHARGES

    Para. 112(a)
    N.D.A.

    USED A VEHICLE OF THE CANADIAN FORCES FOR AN UNAUTHORIZED PURPOSE

    Particulars: In that he, on (date), at (indicate place of offence), without authority used vehicle (type and number), a vehicle of the Canadian Forces, to transport him from his residence at (place), in the city of _________, to the civil airport in the vicinity of that city when proceeding on leave.


     

    Para. 112(b)
    N.D.A.

    WITHOUT AUTHORITY USED A VEHICLE OF THE CANADIAN FORCES

    Particulars: In that he, on (date), at (indicate place of offence), without authority, drove vehicle (type and number), a vehicle of the Canadian Forces, between the Officers’ Mess at (unit), and the railway station at ___________.


     

    Para. 112(c)
    N.D.A.

    USED A VEHICLE OF THE CANADIAN FORCES CONTRARY TO AN ORDER

    Particulars: In that he, on (date), at (indicate place of offence), used vehicle (type and number), a vehicle of the Canadian Forces, for the transportation of the unit hockey team to a distance of more than _______ kilometres from (unit), contrary to the provisions of paragraph _______ , of an order issued by _______ ,on (date).


    (C)

    NOTES

    (A) The class of offence contemplated by paragraph 112(a) of the National Defence Act is the use of a vehicle for some personal purpose even though the driver holds a service operator's permit, whereas paragraph 112(b) of the National Defence Act contemplates a case wherein a person without a service operator's permit uses a vehicle for any purpose, whether such purpose in itself is proper or not. In this case, however, it would be possible for an unauthorized driver to put forward an excuse. For example if a vehicle were parked near a burning building, a person, even though not holding a driver's permit, should obviously take reasonable steps to remove it and would not render himself liable under this section for so doing.

    (B) Paragraph 112(c) of the National Defence Act applies to a great range of circumstances not covered by either 112(a) or (b) of the National Defence Act. For example, a driver who carries a civilian whom he is not authorized to transport cannot be charged with using a vehicle for an unauthorized purpose if he were on a duty run at the time. In those circumstances it would be necessary to lay a charge under paragraph 112(c) of the National Defence Act and the particulars of that charge should contain a reference to the regulation, order or instruction alleged to have been violated.

    (C)


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    103.45 - CAUSING FIRES

    (1) Section 113 of the National Defence Act provides:

    "113. Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 113 should be in the following form:

    Text Version - Statement of the offence - 103.45

    SPECIMEN CHARGES

    Sec. 113
    N.D.A.

    NEGLIGENTLY OMITTED TO DO SOMETHING WHICH OMISSION WAS LIKELY TO CAUSE FIRE TO OCCUR IN A DEFENCE ESTABLISHMENT

    Particulars: In that he, on (date), at (indicate place of offence), negligently failed to ensure that all electrical appliances were turned off in the non-commissioned members’ kitchen at (unit), when the said kitchen was closed for the night.


     

    Sec. 113
    N.D.A.

    CONTRARY TO ORDERS DID SOMETHING WHICH ACT CAUSED FIRE TO OCCUR IN A DEFENCE ESTABLISHMENT

    Particulars: In that he, on (date), at (indicate place of offence), in barrack block 16 by smoking in bed contrary to paragraph _____ of Canadian Forces Base (name) Standing Orders, caused a fire to occur in the said barrack block.


    (C)

    NOTES

    (A) The word "wilfully" in section 113 of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (B) The word "negligently" in section 113 of the National Defence Act signifies that the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (C) The offence prescribed in section 113 of the National Defence Act is considerably broader than the civilian offence of "arson".

    (C)


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    103.46 - STEALING

    (1) Section 114 of the National Defence Act provides:

    "114. (1) Every person who steals is guilty of an offence and on conviction, if by reason of the person's rank, appointment or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding seven years or to less punishment.

    (2) For the purposes of this section,

    1. stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, any thing capable of being stolen, with intent
      1. to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of that property or interest,
      2. to pledge it or deposit it as security,
      3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or
      4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time when it was taken and converted;
    2. stealing is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it;
    3. the taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment; and
    4. it is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person who converts it.

    (3) Every inanimate thing that is the property of any person and that either is or may be made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order that it may be stolen."

    (2) The statement of the offence in a charge under section 114 should be in one of the following forms:

    Text Version - Statement of the offence - 103.46

    SPECIMEN CHARGES

    Sec. 114
    N.D.A.

    STEALING

    Particulars: In that he, on (date), at (indicate place of offence), stole a wristwatch bearing the initials "_____ ", the property of (number, rank and name).


     

    Sec. 114
    N.D.A.

    STEALING, WHEN ENTRUSTED BY REASON OF HIS EMPLOYMENT, WITH THE CUSTODY, CONTROL OR DISTRIBUTION OF THE THING STOLEN

    Particulars: In that he, on (date), at (indicate place of offence), when employed as steward in the bar at the Sergeant’s Mess of (unit), and so entrusted with the custody, control or distribution of the beverages there maintained for sale, stole two bottles of Canadian whisky, part of the beverages so entrusted to him.


     

    NOTES

    (A) On every charge of stealing, three things must be proven by the prosecutor:

    1. that the article in question is one that is capable of being stolen;
    2. that it was in fact stolen - that an offence was committed: and
    3. that it was stolen by the accused.

    (B) In order to prove that an article is capable of being stolen, it must be established that some person other than the accused owns it and, though the owner may be a person unknown, an indication must be given in the charge of his identity, at least by describing such owner in relation to some circumstances.

    (C) The property stolen should be described in detail. It is improper to allege that the accused stole certain named things and "other articles".

    (D) To constitute theft, the taking or conversion mentioned in paragraph 114(2)(a) of the National Defence Act must not only be done with the necessary intent but also must be done fraudulently and without colour of right.

    (E) The words "converting" in paragraph 114(2)(a) and "conversion" in paragraphs 114(2)(c) and (d) of the National Defence Act mean the wrongful appropriation and application of the property of another to one's own use.

    (F) The phrase "colour of right" in paragraph 114(2)(a) of the National Defence Act refers to an honest belief in a state of facts which, if it existed, would furnish a legal justification or excuse for the act. For example, a person who takes possession of property in the belief that it is his own, is not guilty of stealing even though his belief may be mistaken.

    (G) Where a systematic course of petty thefts from the same owner has been perpetrated over a period, it is not necessary to charge each act as a separate offence. The transaction may be treated as one continuous act of stealing and charged in a single charge in which the total amount involved is set out.

    (C)


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    103.47 - RECEIVING

    (1) Section 115 of the National Defence Act provides:

    "115. Every person who receives or retains in his possession any property obtained by the commission of any service offence, knowing the property to have been so obtained, is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment."

    (2) The statement of the offence in a charge under section 115 should be in the following form:

    Text Version - Statement of the offence - 103.47

    SPECIMEN CHARGE

    Sec. 115
    N.D.A.

    RECEIVED PROPERTY OBTAINED BY THE COMMISSION OF A SERVICE OFFENCE, KNOWING THE PROPERTY TO HAVE BEEN SO OBTAINED

    Particulars: In that he, on (date), at (indicate place of offence), received from (number, rank and name), one pair of binoculars, public property, knowing that the binoculars had been obtained by the said (rank and name), by stealing.


     

    NOTES

    (A) The offence of receiving in this section is not dependent on a prior offence of stealing only but may be based upon a prior offence of some other nature. For examples, where an officer received a gift for favours extended in the transaction of business relating to Her Majesty's Forces, he thereby commits a service offence under paragraph 117(c) of the National Defence Act, and another officer who receives that gift from him knowing it to have been so obtained, commits an offence under section 115 of the National Defence Act.

    (B) Where charges of stealing and receiving are laid in respect of the same transaction, they should be laid in the alternative.

    (C) Where an offence of receiving is founded on an earlier act of stealing by someone, the same person cannot normally be both the thief and the receiver and conviction for both offences with regard to the same transaction would therefore be improper and inconsistent. A person who aids, abets, counsels, or procures, though he may under section 72(1) of the National Defence Act (article 103.01 - Responsibility for Offences) be convicted of stealing, is not in actual fact the thief and he may therefore be convicted of receiving, if the delivery to him is not merely an act done in the commission of the theft but a separate transaction which takes place only after the completion of the theft.

    (D) The remarks in Note (C) above relating to receiving do not apply to the offence of retaining possession, since the two offences are distinct and mutually exclusive. In the case of receiving the initial possession was gained with the knowledge that the goods were stolen whereas in the case of retaining, the initial possession was gained honestly and their character as stolen goods was only learned subsequently.

    (E) Section 354 of the Criminal Code creates the omnibus offence of "having in possession" stolen goods and makes no distinction between "receiving" and "retaining". Where there is doubt whether an offence is receiving or retaining, the charge should be laid under section 130 of the National Defence Act alleging breach of section 354 of the Criminal Code.

    (C)


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    103.48 - DESTRUCTION, LOSS OR IMPROPER DISPOSAL

    (1) Section 116 of the National Defence Act provides:

    "116. Every person who

    1. wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any public property, non-public property or property of any of Her Majesty's Forces or of any forces cooperating therewith,
    2. wilfully destroys, damages or improperly sells any property belonging to another person who is subject to the Code of Service Discipline, or
    3. sells, pawns or otherwise disposes of any cross, medal, insignia or other decoration granted by or with the approval of Her Majesty,

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 116 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.48a

    2. Text Version - Statement of the offence - 103.48b

    3. Text Version - Statement of the offence - 103.48c

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    SPECIMEN CHARGES

    Para. 116(a)
    N.D.A.

    WILFULLY DAMAGED PUBLIC PROPERTY

    Particulars: In that he, on (date), at (indicate place of offence), damaged the front seat-cover of vehicle (type and number), a vehicle of the Canadian Forces, by slashing that seat-cover with a knife.


     

    Para. 116(b)
    N.D.A.

    SOLD IMPROPERLY PROPERTY BELONGING TO ANOTHER PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), without authority sold to (name and address), one camera, the property of (number, rank and name), a member of the Canadian Forces.


     

    Para. 116(c)
    N.D.A.

    SOLD A DECORATION GRANTED BY HER MAJESTY

    Particulars: In that he, on (date), at (indicate place of offence), sold to (name and address), the George Cross granted to him by Her Majesty.


    (C)

    NOTES

    (A) The word "wilfully" in paragraphs 116(a) and (b) of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (B) A charge should not be laid under paragraphs 116(a) or (b) of the National Defence Act of improperly selling, if the "improper" conduct alleged amounted merely to an error in judgement or incorrect action. The element of dereliction of duty must have been present.

    (C)


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    103.49 - MISCELLANEOUS OFFENCES

    (1) Section 117 of the National Defence Act provides:

    "117. Every person who

    1. connives at the exaction of an exorbitant price for property purchased or rented by a person supplying property or services to the Canadian Forces,
    2. improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department or the Canadian Forces, (1 September 1999)
    3. receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration, either in money or otherwise, from any person, for assisting or favouring any person in the transaction of any business relating to any of Her Majesty's Forces, or to any forces cooperating therewith or to any mess, institute or canteen operated for the use and benefit of members of those forces,
    4. demands or accepts compensation, consideration or personal advantage for convoying a vessel entrusted to his care,
    5. being in command of a vessel or aircraft, takes or receives on board goods or merchandise that he is not authorized to take or receive on board, or
    6. commits any act of a fraudulent nature not particularly specified in sections 73 to 128,

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 117 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.49a

    2. Text Version - Statement of the offence - 103.49b


    3. Text Version - Statement of the offence - 103.49c

    4. Text Version - Statement of the offence - 103.49d

    5. Text Version - Statement of the offence - 103.49e

    6. An act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act.

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    SPECIMEN CHARGES

    Para. 117(b)
    N.D.A.

    IMPROPERLY ACCEPTED CONSIDERATION IN RESPECT OF THE PERFORMANCE OF MILITARY DUTY

    Particulars: In that he, on (date), at (indicate place of offence), improperly accepted the sum of dollars from the firm of (name), in consideration of the placing with the said firm of an order for the purchase of (specify item), the placing of the said order being in the performance of his military duty as (specify duty).


     

    Para. 117(b)
    N.D.A.

    RECEIVED A LOAN FOR FAVOURING ANOTHER PERSON IN THE TRANSACTION OF BUSINESS RELATING TO A MESS

    Particulars: In that he, on (date), at (indicate place of offence), in return for placing an order for beer for the Officers’ Mess of (unit) with (name of firm), received a loan in the amount of dollars from A.B., the sales manager of the said firm.


     

    Para. 117(c)
    N.D.A.

    DEMANDED PERSONAL ADVANTAGE FOR CONVOYING A VESSEL ENTRUSTED TO HIS CARE

    Particulars: In that he, on (date), at (indicate place of offence), demanded from (name), the captain of (name of vessel), free passage on the said (name of vessel), for his wife, between Canada and the United Kingdom, in return for convoying the said (name of vessel), being a vessel entrusted to his care.


     

    Para. 117(d)
    N.D.A.

    BEING IN COMMAND OF AN AIRCRAFT RECEIVED ON BOARD MERCHANDISE THAT HE WAS NOT AUTHORIZED TO RECEIVE ON BOARD

    Particulars: In that he, on (date), at (indicate place of offence), being in command of aircraft (type and number or letters), received on board the said aircraft three flasks of perfume, he not being authorized to receive the said perfume on board.


     

    Para. 117(f)
    N.D.A.

    AN ACT OF A FRAUDULENT NATURE NOT PARTICULARLY SPECIFIED IN SECTIONS 73 TO 128 OF THE NATIONAL DEFENCE ACT

    Particulars: In that he, on (date), at (indicate place of offence), being in charge of the non-commissioned member’s mess at (unit), with intent to defraud, placed in the stock pile of cases containing full bottles of beer, a number of beer cases in which no beer was contained.


    (C) [1 September 1999]

    NOTES

    (A) An example of an offence under paragraph 117(a) of the National Defence Act would be the following. A unit has need of provisions and finds it necessary to make arrangements with a wholesale grocer for its supplies. Clandestinely, an officer of the unit makes arrangements for a farmer to supply the wholesale grocer with certain items at a price higher than the farmer would otherwise have charged. As a result, the wholesale grocer is obliged to make a higher charge to the unit.

    (B) A charge should not be laid under paragraph 117(b) of the National Defence Act of doing something improperly if the "improper" conduct alleged amounted merely to an error in judgement or incorrect action. The element of dereliction of duty should have been present.

    (C) The word "fraudulent" in paragraph 117(f) of the National Defence Act refers to some deceitful practice or device resorted to with intent to deprive another of his rights, or in some manner to do him an injury.

    (C)


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    103.50 - OFFENCES IN RELATION TO TRIBUNALS

    (1) Section 118 of the National Defence Act provides:

    "118. (1) For the purposes of this section and section 119, “tribunal” includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.

    (2) Every person who

    1. being duly summoned or ordered to attend as a witness before a tribunal, fails to attend or to remain in attendance,
    2. refuses to take an oath or make a solemn affirmation lawfully required by a tribunal to be taken or made,
    3. refuses to produce any document in the power or control of, and lawfully required by a tribunal to be produced by, that person,
    4. refuses when a witness to answer any question to which a tribunal may lawfully require an answer,
    5. uses insulting or threatening language before, or causes any interruption or disturbance in the proceedings of, a tribunal, or
    6. commits any other contempt of a tribunal

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 118 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.50a

    2. Text Version - Statement of the offence - 103.50b

    3. Text Version - Statement of the offence - 103.50c

    4. Text Version - Statement of the offence - 103.50d

    5. Text Version - Statement of the offence - 103.50e

    6. Text Version - Statement of the offence - 103.50f

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    SPECIMEN CHARGES

    Para. 118(2)(a)
    N.D.A.

    HAVING BEEN DULY ORDERED TO ATTEND AS WITNESS BEFORE A COURT MARTIAL, FAILED TO ATTEND

    Particulars: In that he, on (date), at (indicate place of offence), having been duly ordered by (service number, rank and name), his commanding officer, to attend as a witness before a General Court Martial convened to try (service number, rank and name), at (place), did not attend.


     

    Para. 118(2)(b)
    N.D.A.

    REFUSED TO TAKE AN OATH OR MAKE A SOLEMN AFFIRMATION LAWFULLY REQUIRED BY A PERSON PRESIDING AT A SUMMARY TRIAL TO BE TAKEN OR MADE

    Particulars: In that he, on (date), at (indicate place of offence), when appearing as a witness at a summary trial before (service number, rank and name), when required by the said (service number, rank and name), to be sworn or to make a solemn affirmation, refused to take the oath or make the affirmation prescribed by regulations.


     

    Para. 118(2)(c)
    N.D.A.

    REFUSED TO PRODUCE A DOCUMENT IN HIS CONTROL LAWFULLY REQUIRED BY A COURT MARTIAL TO BE PRODUCED BY HIM

    Particulars: In that he, on (date), at (indicate place of offence), when a witness before a General Court Martial convened for the trial of (service number, rank and name), having control of the pay ledger sheets of the accused, refused to produce those sheets when directed to do so by the presiding military judge of the court martial.


     

    Para. 118(2)(d)
    N.D.A.

    REFUSED WHEN A WITNESS TO ANSWER A QUESTION WHICH A BOARD OF INQUIRY LAWFULLY REQUIRED HIM TO ANSWER

    Particulars: In that he, on (date), at (indicate place of offence), when a witness before a board of inquiry convened to investigate the loss of certain public property, refused to answer when asked by the president of that board of inquiry whether previous losses of the same nature had occurred.


     

    Para. 118(2)(e)
    N.D.A.

    USED INSULTING LANGUAGE BEFORE A COURT MARTIAL

    Particulars: In that he, on (date), at (indicate place of offence), while in attendance as a member of the public at a General Court Martial convened for the trial of (service number, rank and name), shouted “You are all as straight as corkscrews. You’re giving my buddy a rough deal”, or words to that effect.


     

    Para. 118(2)(f)
    N.D.A.

    CONTEMPT OF A COURT MARTIAL

    Particulars: In that he, on (date), at (indicate place of offence), before a General Court Martial convened for his trial, thumbed his nose at the senior member of the court martial panel.


    (C) [1 September 1999 – Notes repealed; 18 July 2008; 18 October 2013]


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    103.505 - FAILURE TO APPEAR OR ATTEND

    (1) Section 118.1 of the National Defence Act provides:

    "118.1 Every person who, being duly summoned or ordered to appear as an accused before a service tribunal, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 118.1 should be in following form:

    Text Version - Statement of the offence - 103.505

    SPECIMEN CHARGE

    Sec. 118.1
    N.D.A.

    HAVING BEEN DULY SUMMONED, FAILED TO APPEAR BEFORE A SERVICE TRIBUNAL

    Particulars: In that he, on (date), at (indicate place of offence), having been duly summoned to appear as the accused before the Standing Court Martial at 1000 hours convened for (number, rank and name), without lawful excuse, failed to appear as summoned.


    (C) [1 September 1999]

    103.51 - FALSE EVIDENCE

    (1) Section 119 of the National Defence Act provides:

    "119. Every person who, when examined on oath or solemn affirmation before a tribunal, knowingly gives false evidence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment."

    (2) The statement of the offence in a charge under section 119 should be in the following form:

    Text Version - Statement of the offence - 103.51

    SPECIMEN CHARGE

    Sec. 119
    N.D.A.

    WHEN EXAMINED ON OATH BEFORE A COURT MARTIAL, KNOWINGLY GAVE FALSE EVIDENCE

    Particulars: In that he, on (date), at (indicate place of offence), when a witness before a Standing Court Martial convened for the trial of (service number, rank and name), in answer to a question from the prosecutor, stated that the accused person was with him on the night of January 24, 2013, knowing that the statement was false.


    (C) [18 July 2008; 18 October 2013]

    NOTES

    (A) Trifling mistakes in evidence should not be made the subject of a charge under section 119 of the National Defence Act. This section is applicable to an accused person who gives evidence himself, but a charge against him under this section should not be preferred except in a very flagrant case.

    (B) The proceedings of a court martial before which false evidence is alleged to have been given are admissible as evidence that the accused swore as charged.

    (C) The evidence of one witness without corroboration in some material respect is not sufficient to prove the falsehood of the matter concerned.

    (D) Under subsection 118(1) of the National Defence Act, “tribunal” for the purposes of section 119 of that Act includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under that Act and any inquiry committee established under regulations.

    (C) [1 September 1999; 18 October 2013]


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    103.511 - OFFENCE IN RELATION TO THE SEX OFFENDER INFORMATION REGISTRATION ACT

    (1) Section 119.1 of the National Defence Act provides:

    “119.1 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

    (2)  For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.

    (3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

    (4)  The person named in the certificate may, with the leave of the court martial, require the attendance of the person who signed it for the purpose of cross-examination.

    (5)  A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the person named in the certificate a copy of it and reasonable notice of their intention to produce it.”

    (2) The statement of the offence in a charge under section 119.1 should be in the following form:

    Text Version - Statement of the offence - 103.511

    SPECIMEN CHARGE

    Sec. 119.1
    N.D.A.

    FAILED TO COMPLY WITH AN ORDER MADE UNDER SECTION 227.01 OF THE NATIONAL DEFENCE ACT

    Particulars: In that the accused, having been ordered on (date) by (specify court martial) to comply with an order made under section 227.01 of the National Defence Act, without reasonable excuse, failed to comply with the order to report at (indicate place).


    (C) [12 September 2008; 15 April 2011]


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    103.512 - OFFENCE IN RELATION TO DNA IDENTIFICATION

    (1) Section 119.2 of the National Defence Act provides

    “119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

    (2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.”

    (2) The statement of the offence in a charge under section 119.2 should be in the following form:

    Text Version - Statement of the offence - 103.512

    SPECIMEN CHARGE

    Sec. 119.2
    N.D.A.

    FAILED TO COMPLY WITH AN ORDER MADE UNDER SUBSECTION 196.14(4) OF THE NATIONAL DEFENCE ACT

    Particulars: In that he, having been ordered on (date) by (specify court martial) to report at (hours) on (date) at (indicate place of offence) and submit to the taking of samples of bodily substances for the purpose of forensic DNA analysis, without reasonable excuse, failed to comply with the order.


    Sec. 119.2
    N.D.A.

    FAILED TO COMPLY WITH AN ORDER MADE UNDER SUBSECTION 487.051(4) OF THE CRIMINAL CODE

    Particulars: In that he, having been ordered on (date) by (specify judge and court) to report at (hours) on (date) at (indicate place of offence) and submit to the taking of samples of bodily substances for the purpose of forensic DNA analysis, without reasonable excuse, failed to comply with the order.


    Sec. 119.2
    N.D.A.

    FAILED TO COMPLY WITH A SUMMONS REFERRED TO IN SUBSECTION 487.055(4) OF THE CRIMINAL CODE

    Particulars: In that he, having been served with a summons on (date) by (specify judge and court) to report at (hours) on (date) at (indicate place of offence) and submit to the taking of samples of bodily substances for the purpose of forensic DNA analysis, without reasonable excuse, failed to comply with the summons.


    (C) [March 26, 2009]


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    103.52 - OFFENCES IN RELATION TO BILLETING

    (1) Section 120 of the National Defence Act provides:

    "120. Every person who

    1. ill-treats, by violence, extortion or making disturbance in billets or otherwise, any occupant of a house in which any person is billeted or of any premises in which accommodation for materiel has been provided, or
    2. fails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or non-commissioned member under his command is or has been billeted or the occupant of premises on which materiel is or has been accommodated,

    is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 120 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.52a

    2. Text Version - Statement of the offence - 103.52b

    Top of Page

    SPECIMEN CHARGE

    Para. 120(a)
    N.D.A.

    ILL TREATED, BY VIOLENCE, AN OCCUPANT OF A HOUSE IN WHICH A PERSON WAS BILLETED

    Particulars: In that he, on (date), at (indicate place of offence), kicked (name), an occupant of premises situated at (address), in which were billeted non-commissioned members of (unit).


    (C)

    NOTE

    It is to be noted that the offence prescribed in subparagraph 120(a) of the National Defence Act would in many cases also constitute a civil offence triable in the civil courts.

    (C)


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    103.53 - FRAUDULENT ENROLMENT

    (1) Section 121 of the National Defence Act provides:

    "121. Every person who, having been released from Her Majesty's Forces by reason of a sentence of a service tribunal or by reason of misconduct, has afterwards been enrolled in the Canadian Forces without declaring the circumstances of that release is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 121 should be in the following form:

    Text Version - Statement of the offence - 103.53

    SPECIMEN CHARGE

    Sec. 121
    N.D.A.

    HAVING BEEN RELEASED FROM HER MAJESTY’S FORCES BY REASON OF A SENTENCE OF A SERVICE TRIBUNAL, DID NOT DECLARE THE CIRCUMSTANCES OF THAT RELEASE UPON BEING ENROLLED AFTERWARDS IN THE CANADIAN FORCES

    Particulars: In that he, on (date), at (indicate place of offence), upon being enrolled in the Canadian Forces, did not declare that, as was the case, he had on or about the day of ____, 19____, been released from Her Majesty’s Forces by reason of a General Court Martial having sentenced him to dismissal with disgrace from Her Majesty’s service.


    (C)

    NOTES

    (A) Section 121 and 122 of the National Defence Act are the only sections in which the offence consists in something done or omitted before the alleged offender became subject to the Code of Service Discipline. The offender must, however, at the time of being charged, dealt with and tried, be subject to that Code.

    (B) Failure to declare the circumstances of release is prima facie proved by the attestation papers showing that answers given were inconsistent with the facts.

    (C) A person who can show that when released he was not made acquainted with the fact that his release was for one of the reasons mentioned in section 121 of the National Defence Act, should not be convicted under this section.

    (D) A person charged with an offence under section 121 of the National Defence Act should not also be charged under section 122 of the National Defence Act with having made a false answer on the occasion of his enrolment.

    (C)


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    103.54 - FALSE ANSWER OR FALSE INFORMATION ON ENROLMENT

    (1) Section 122 of the National Defence Act provides:

    "122. Every person who knowingly

    1. makes a false answer to any question set out in any document required to be completed, or
    2. furnishes any false information or false document,

    in relation to the enrolment of that person is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 122 should be in one of the following forms:

    1. Knowingly made a false answer to a question set out in a document required to be completed in relation to his enrolment.
    2. Text Version - Statement of the offence - 103.54b

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    SPECIMEN CHARGES

    Para. 122(a)
    N.D.A.

    KNOWINGLY MADE A FALSE ANSWER TO A QUESTION SET OUT IN A DOCUMENT REQUIRED TO BE COMPLETED IN RELATION TO HIS ENROLMENT

    Particulars: In that he, on (date), at (indicate place of offence), in answer to the question "Have you ever been convicted of an indictable offence", a question set out in his application for enrolment, answered "No", knowing that he had in fact been convicted by the civil power on or about ______ day of ______, 19—, of the offence of sexual assault.


     

    Para. 122(b)
    N.D.A.

    KNOWINGLY FURNISHED A FALSE DOCUMENT IN RELATION TO HIS ENROLMENT

    Particulars: In that he, on (date), at (indicate place of offence), in relation to his enrolment in the Canadian Forces, furnished a senior matriculation certificate as his certificate of educational qualification, knowing it to be false


    (C) [5 June 2008]

    NOTES

    (A) Sections 121 and 122 of the National Defence Act are the only sections in which the offence consists in something done or omitted before the alleged offender became subject to the Code of Service Discipline. The offender must, however, at the time of being charged, dealt with and tried, be subject to that Code.

    (B) The word "knowingly" in section 122 of the National Defence Act has the effect of requiring the prosecutor to adduce evidence of knowledge. If the false statement is established, however the service tribunal may infer knowledge from the circumstances.

    (C) A person should not he charged with a "false answer" under paragraph 122(a) of the National Defence Act and, at the same time, with having committed an offence under section 121 of the National Defence Act in respect of the same enrolment. Examples of the classes of cases to which section 122 of the National Defence Act relates occur where an applicant makes false statements with respect to his age or his educational qualification.

    (C)


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    103.55 - ASSISTING UNLAWFUL ENROLMENT

    (1) Section 123 of the National Defence Act provides:

    "123. Every person who is concerned in the enrolment of any other person and who knows or has reasonable grounds to believe that by being enrolled that other person commits an offence under this Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 123 should be in the following form:

    Text Version - Statement of the offence - 103.55

    SPECIMEN CHARGE

    Sec. 123
    N.D.A.

    BEING CONCERNED IN THE ENROLMENT OF ANOTHER PERSON KNEW THAT BY BEING ENROLLED THAT OTHER PERSON COMMITTED AN OFFENCE UNDER THE NATIONAL DEFENCE ACT

    Particulars: In that he, on (date), at (indicate place of offence), enrolled (number, rank and name), knowing that (rank and name) had been released for misconduct from Her Majesty’s Forces, and had failed to declare the circumstances of that release.


    (C)

    NOTES

    An example of the class of case to which section 123 of the National Defence Act applies is where a recruiting officer participates in the enrolment of a person, known to him to have been released for misconduct, who has not declared the reason for his release upon his attestation paper.

    (C)


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    103.56 - NEGLIGENT PERFORMANCE OF DUTIES

    (1) Section 124 of the National Defence Act provides:

    "124. Every person who negligently performs a military duty imposed on that person is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

    (2) The statement of the offence in a charge under section 124 should be in the following form:

    Negligently Performed A Military Duty Imposed On Him.

    SPECIMEN CHARGE

    Sec. 124
    N.D.A.

    NEGLIGENTLY PERFORMED A MILITARY DUTY IMPOSED ON HIM

    Particulars: In that he, on (date), at (indicate place of offence), while acting as range safety officer at (place), failed to ensure, as it was his duty to do, that all persons were clear of the target area before giving the order for firing to commence.


    (C)

    NOTES

    (A) The word "negligently" in section 124 of the National Defence Act signifies that the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (B) This offence is stated in broad general terms but section 124 of the National Defence Act should not be invoked in ordinary cases of carelessness but only where the nature of the military duty, or the circumstances in which it is being performed, is such as to impose upon the individual a need to take special care in its performance.

    (C)


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    103.57 - OFFENCES IN RELATION TO DOCUMENTS

    (1) Section 125 of the National Defence Act provides:

    "125. Every person who

    1. wilfully or negligently makes a false statement or entry in a document made or signed by that person and required for official purposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof,
    2. when signing a document required for official purposes, leaves in blank any material part for which the signature is a voucher, or
    3. with intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any military or departmental purposes,

    is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding three years or to less punishment."

    (2) The statement of the offence in a charge under section 125 should be in one of the following forms:

    1. Text Version - Statement of the offence - 103.57a

    2. When signing a document required for official purposes, left blank a materia part for which his signature was a voucher
    3. Text Version - Statement of the offence - 103.57c

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    SPECIMEN CHARGES

    Para. 125(a)
    N.D.A.

    WILFULLY MADE A FALSE ENTRY IN A DOCUMENT MADE BY HIM THAT WAS REQUIRED FOR OFFICIAL PURPOSES

    Particulars: In that he, on (date), at (indicate place of offence), made an entry in the civilian attendance records showing that (name) had reported for work at _____ hours, on (date), knowing that the said name) had not so reported.


     

    Para. 125(b)
    N.D.A.

    WHEN SIGNING A DOCUMENT REQUIRED FOR OFFICIAL PURPOSES, LEFT IN BLANK A MATERIAL PART FOR WHICH HIS SIGNATURE WAS A VOUCHER

    Particulars: In that he, on (date), at (indicate place of offence), when completing an acknowledgment of receipt of chronometers by (unit), left in blank the number of chronometers received by the said unit, his signature to the said document being a voucher of receipt of the said chronometers.


     

    Para. 125(c)
    N.D.A.

    WITH INTENT TO INJURE ANOTHER, ALTERED A DOCUMENT ISSUED FOR A MILITARY PURPOSE

    Particulars: In that he, on (date), at (indicate place of offence), with intent to injure (number, rank and name), altered an authorization for leave issued to the said (rank and name), by changing the date of termination of leave from "20 Aug 19—" to "2 Aug 19—".


    (C)

    NOTES

    (A) The word "wilfully" in paragraph 125(a) of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (B) In making a statement or an entry in an official document a person has a duty in law to take reasonable steps to ascertain the accuracy of the statement or entry. If a statement or entry is inaccurate, the failure to have taken these steps constitutes "negligence" under section 125 of the National Defence Act.

    (C) The word "intent" merely has the effect of imposing upon the prosecution a duty, more onerous than would otherwise be the case, of proving that the accused did or omitted to do the act in question deliberately. In the case of most offences, however, although the word "intent" does not appear in the section prescribing them, intent is an essential element but it is inferred from the facts and circumstances established. There are some offences, however, in which intent is not an essential element.

    (D) The classes of documents contemplated by section 125 of the National Defence Act are those which an officer or non-commissioned member submits either as part of his military duty or because he desires to obtain some benefit or advantage permitted by regulations or orders, and the benefit or advantage is obtainable only after completion of prescribed documents. The person should not be charged under this section in respect of documents which he is required to complete in his civilian capacity such as civilian income tax returns, succession duty forms, birth and death registrations, etc.

    (E) A trifling error in a report should not be made the ground of a charge under section 125 of the National Defence Act.

    (C)


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    103.58 - REFUSING IMMUNIZATION, TESTS, BLOOD EXAMINATION OR TREATMENT

    (1) Section 126 of the National Defence Act provides:

    "126. Every person who, on receiving an order to submit to inoculation, re-inoculation, vaccination, revaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, willfully and without reasonable excuse disobeys that order is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 126 should be in the following form:

    Text Version - Statement of the offence - 103.58

    SPECIMEN CHARGE

    Sec. 126
    N.D.A.

    ON RECEIVING AN ORDER TO SUBMIT TO VACCINATION, WILFULLY AND WITHOUT REASONABLE EXCUSE DISOBEYED THE ORDER

    Particulars: In that he, on (date), at (indicate place of offence), when ordered by (number, rank and name), to submit to vaccination against smallpox, did not do so.


    (C)

    NOTES

    (A) No authority exists whereby a person can be forced actually to undergo inoculation, etc., although he can be ordered to submit himself to such a procedure. Failure of a person to submit to inoculation. etc., in spite of an order requiring him to do so, would constitute an offence on his part. "Reasonable excuse" is a defence to a charge under section 126 of the National Defence Act. (5 June 2008)

    (B) Persons who refuse to submit to inoculation, etc., who are able to prove sincere conviction on the ground of religious belief or other scruple should not be charged under section 126 of the National Defence Act. The main purpose of the section is to ensure that members of the Canadian Forces will not evade important service by refusing to submit to inoculation, etc., when failure to be inoculated would mean that they could not be sent on duty to a particular area.

    (C) The word "wilfully" in section 126 of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did and was not acting under compulsion.

    (C) [5 June 2008]


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    103.59 - NEGLIGENT HANDLING OF DANGEROUS SUBSTANCES

    (1) Section 127 of the National Defence Act provides:

    "127. Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions does any act or omits to do anything, in relation to any thing or substance that may be dangerous to life or property, which act or omission causes or is likely to cause loss of life or bodily injury to any person or damage to or destruction of any property, is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment."

    (2) The statement of the offence in a charge under section 127 should be in the following form:

    Text Version - Statement of the offence - 103.59

    SPECIMEN CHARGE

    Sec. 127
    N.D.A.

    NEGLIGENTLY OMITTED TO DO SOMETHING IN RELATION TO A SUBSTANCE THAT MAY BE DANGEROUS TO LIFE, WHICH OMISSION CAUSED LOSS OF LIFE

    Particulars: In that he, on (date), at (indicate place of offence), while supervising the stowage of rocket fuel in the back of vehicle (type and number), negligently omitted to ensure that the containers of that fuel were securely lashed down, as a result of which omission two or more of the containers came in violent contact with each other, occasioning an explosion that resulted in the death of (number, rank and name).


    (C)

    NOTES

    (A) Section 127 of the National Defence Act is designed to provide suitably for offences in relation to modern materials of war which inherently are so dangerous that an extreme degree of care in their handling is required. Responsibility is not dependent upon whether the accused intended the actual consequences which his wrong-doing produced.

    (B) The word "wilfully" in section 127 of the National Defence Act signifies that the alleged offender knew what he was doing, intended to do what he did, and was not acting under compulsion.

    (C) The word "negligently" in section 127 of the National Defence Act signifies that the alleged offender either did something or omitted to do something in a manner which would not have been adopted by a reasonably capable and careful person in his position in the Service under similar circumstances.

    (D) The expression "any person" as used in section 127 of the National Defence Act includes the accused.

    (C)


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    103.595 - CONSPIRACY

    (1) Section 128 of the National Defence Act provides:

    "128. Every person who conspires with any other person, whether or not that other person is subject to the Code of Service Discipline, to commit an offence under the Code of Service Discipline is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment."

    (2) The statement of the offence in a charge under section 128 should be in the following form:

    Conspired with another person to commit an offence under the Code of Service Discipline

    SPECIMEN CHARGE

    Sec. 128
    N.D.A.

    CONSPIRED WITH ANOTHER PERSON TO COMMIT AN OFFENCE UNDER THE CODE OF SERVICE DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), agreed with (number, rank and name), to steal a watch, the property of (number, rank and name), stealing being an offence under section 114 of the National Defence Act.


    (C)

    NOTES

    (A) To constitute the offence of conspiracy under the Code of Service Discipline, there must be a combination of two or more persons who have agreed and intend to accomplish an unlawful purpose or by unlawful means some purpose not in itself unlawful.

    (B) The agreement in a conspiracy need not

    1. be in any particular form nor manifested in any formal words, or
    2. expressly declare the means by which the conspiracy is to be accomplished or what part each conspirator is to play.

    (C) The minds of the parties to the conspiracy must arrive at a common understanding to accomplish the object of the conspiracy.

    (D) A conspiracy to commit an offence is a different and distinct offence from the offence which is the object of the conspiracy. While both conspiracy and the consummated offence which was its object may be charged and tried, it is preferable to avoid a multiplicity of charges and if it is thought necessary to lay a charge of conspiracy as well as a charge for the offence which was its object, they should be laid in the alternative.

    (E) Section 128 of the National Defence Act will apply not only to the offences under sections 72 to 129 but also to offences under section 130 (see article 103.61 - Offences Against other Canadian Law) and section 132 (see article 103.615 - Offences Against Foreign Law) of the National Defence Act. In view of the minimum and maximum punishments which are mandatory or permissive under the other Canadian or foreign law, careful consideration should be given to these aspects before it is decided to lay a charge under section 130 or 132 rather than section 128. (1 September 1999)

    (C) [1 September 1999]


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    103.60 - CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    (1) Section 129 of the National Defence Act provides:

    "129. (1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty's service or to less punishment.

    (2) An act or omission constituting an offence under section 72 or a contravention by any person of

    1. any of the provisions of the Act,
    2. any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or
    3. any general, garrison, unit, station, standing, local or other orders,

    is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

    (3) An attempt to commit any of the offences prescribed in sections 73 to 128 is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

    (4) Nothing in subsection (2) or (3) affects the generality of subsection (1).

    (5) No person may be charged under this section with any offence for which special provision is made in sections 73 to 128 but the conviction of a person so charged is not invalid by reason only of the charge being in contravention of this subsection unless it appears that an injustice has been done to the person charged by reason of the contravention.

    (6) The responsibility of any officer for the contravention of subsection (5) is not affected by the validity of any conviction on the charge in contravention of that subsection."

    (2) The statement of the offence in a charge under section 129 should be in the following form:

    Text Version - Statement of the offence - 103.60

    SPECIMEN CHARGES

    Sec. 129
    N.D.A.

    AN ACT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), while undergoing the punishment of confinement to barracks, attempted to break out of barracks by trying to walk past the sentry on duty.


     

    Sec. 129
    N.D.A.

    AN ACT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), entered the premises of (name), in the city of _______contrary to paragraph ______ of _____ standing orders for (unit), dated _______.


     

    Sec. 129
    N.D.A.

    AN ACT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), entered into direct communication with the Department of External Affairs on subjects connected with his future employment, contrary to article 19.38 of the Queen’s Regulations and Orders for the Canadian Forces.


     

    Sec. 129
    N.D.A.

    NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), failed to conduct a monthly audit of the non-public property account, as it was his duty to do.


     

    Sec. 129
    N.D.A.

    CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

    Particulars: In that he, on (date), at (indicate place of offence), did attempt to take ashore from H.M.C.S. "(name)" one case of Scotch whisky on which duty had not been paid, contrary to article ______ of Ship’s Standing Orders.


    (C)

    NOTES

    (A) A service tribunal would not be warranted in convicting an accused of this offence laid under section 129 of the National Defence Act unless of the opinion that the act, etc., proved was to the prejudice of both good order and discipline, having regard to its nature and to the circumstances in which it took place.

    (B) The word "neglect" refers to a failure to perform any duty imposed by law, practice or custom and of which the accused knew or ought to have known. To be punishable under section 129 of the National Defence Act "neglect" must be blameworthy. If neglect is willful, i.e., intentional, it is clearly blameworthy. If it is caused by an honest error of judgement and involves no lack of zeal and no element of careless or intentional failure to take the proper action it is equally clear that is blameless and cannot be a ground for conviction. Where it is not thus completely blameless, the degree of blameworthiness naturally varies, and a court trying such a case must consider the whole circumstances of the case and in particular the responsibility of the accused. For example, a high degree of care can rightly be demanded of an officer or non-commissioned member who is in charge of a dangerous article where a slight degree of negligence may involve danger to life; in such circumstances a small degree of negligence may be so blameworthy as to justify conviction and punishment. On the other hand, such a slight degree of negligence resulting from forgetfulness or inadvertence, in relation to a matter that does not rightly demand a very high degree of care, would not be judged so blameworthy as to justify conviction and punishment. The essential thing for the court to consider is whether in the whole circumstances of the case as they existed at the time of the offence the degree of neglect proved is such as, having regard to the evidence and their military knowledge as to the amount of care that ought to have been exercised, renders the neglect so substantially blameworthy as to be deserving of punishment.

    (C) The words "good order" used in section 129 of the National Defence Act are wide enough to include good order in the sense in which the words would be understood in civil life and applicable to civilians and in the sense in which they would be understood in military life as applicable to members of a military force. It is not sufficient to prove that the act, etc., is prejudicial to good order but it must also be proved that the act was prejudicial to discipline. For example, an officer on leave, away from his unit and in civilian clothes, who creates a disturbance in a theatre by talking too loudly might have committed an act to the prejudice of good order, but not necessarily to the prejudice of discipline. On the other hand, once it is established that the conduct, etc., was prejudicial to discipline it is also prejudicial to good order in the military sense as applicable to members of a military force.

    (D) If there is real doubt as to whether one of the other offences prescribed in the National Defence Act has been committed and the circumstances would justify a less serious charge under section 129 of the National Defence Act, the charge should be laid under this section.

    (E) Where a contravention mentioned in subsection 129(2) of the National Defence Act is the basis of a charge, all that the prosecutor needs to prove is:

    1. that the alleged contravention actually occurred, and
    2. in the case of a breach of regulations, orders or instructions under paragraph 129 (2)(b) or (c) of the National Defence Act, that the regulation, order or instruction was issued and was published in a manner prescribed by article1.20 (Notification of Regulations, Orders, and Instructions - Reserve Force) or 1.21 (Notification by Receipt of Regulations, Orders and Instructions) as appropriate.

    Upon proof by the prosecutor that the regulation, order or instruction was issued and promulgated in the manner so prescribed, the accused is deemed to have knowledge of its contents, and it is no defence for him to say that he was unaware of its existence or was ignorant of its contents. The regulation, order or instruction must be a lawful one (see article 19.015 - Lawful Orders and Commands and Notes thereto and article 19.02 - Conflicting Lawful Commands and Orders).

    (F) In most cases attempts may be charged only under section 129 of the National Defence Act but exceptions are to be found in section 84 (see article 103.17 - Striking or Offering Violence to a Superior Officer), section 88 (see article 103.21 -Desertion), section 101 (see article 103.34 - Escape from Custody) and section 130 (see article 103.61 - Offences Against Other Canadian Law). There are two essential elements of an attempt:

    1. an intent to commit the offence, and
    2. an act or omission towards the commission of the offence. An intent alone is not sufficient if nothing is done to carry it into effect. A distinction must, however, be drawn between acts or omissions toward the commission of an offence and those which are mere preparation. It is not possible to draw a clear line of distinction but, in general, preparation consists in devising or arranging the means for the commission of an offence while, on the other hand, an act or omission sufficient to support a charge based upon attempting must involve a direct movement towards the commission of an offence after the preparations have been made. For example, a person, having an intent to set fire to a building, might purchase matches for the purpose. The purchase would merely be a stage in his preparations and not such an act as to justify a charge based upon attempting. An example of an act justifying a charge based upon attempting would be the application of a lighted match to the building.

    (G) The following are a few instances of matters commonly charged and alleged in the statement of particulars a charge under section 129 of the National Defence Act:

    (C)


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    103.61 - OFFENCES AGAINST OTHER CANADIAN LAW

    (1) Section 130 of the National Defence Act provides:

    "130. (1) An act or omission

    1. that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
    2. 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 Part and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

    (2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,

    1. if the conviction was in respect of an offence
      1. committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or
      2. committed outside Canada under section 235 of the Criminal Code,

      impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or
    2. in any other case,
      1. impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or
      2. impose dismissal with disgrace from Her Majesty's service or less punishment.

    (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).

    (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence." (1 September 1999)

    (2) The statement of the offence in a charge under section 130 should be in the following form:

    An offence punishable under section 130 of the National Defence Act, that is to say, (state the offence) contrary to (state the provision under which the offence is prescribed).

    SPECIMEN CHARGES

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, ATTEMPT TO COMMIT MURDER, CONTRARY TO SECTION 239 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), shot, with intent to kill, (number, rank and name).


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, WITH INTENT TO DO BODILY HARM TO A PERSON THREW AT THAT PERSON A CORROSIVE FLUID CONTRARY TO SUBSECTION 81(2) OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence) threw sulfuric acid in the face of (number, rank and name).


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, POINTED AT ANOTHER PERSON A FIREARM CONTRARY TO SUBSECTION 86(1) OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), did without lawful excuse point a rifle at (number, rank and name).


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL ASSAULT, CONTRARY TO SECTION 271 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), did commit a sexual assault on (name).


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL ASSAULT CAUSING BODILY HARM, CONTRARY TO SECTION 272 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), did in committing a sexual assault on (name), cause bodily harm to her.


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, BY CRIMINAL NEGLIGENCE CAUSED BODILY HARM TO ANOTHER PERSON CONTRARY TO SECTION 221 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), did unlawfully cause bodily harm to (name), by negligently discharging a firearm without first ascertaining that no person was within the area the bullet might be expected to traverse.


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, WITH INTENT TO DISFIGURE A PERSON, CAUSED BODILY HARM TO THAT PERSON CONTRARY TO SECTION 244 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), slashed with a razor blade the face of (number, rank and name), with intent to disfigure (rank and name).


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, COMMITTED AN ASSAULT THAT CAUSED BODILY HARM TO A PERSON CONTRARY TO SUBSECTION 267(L) OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), assaulted (number, rank and name), by kicking (rank and name), in the head and so caused (rank and name), to lose the sight of his left eye.


     

    Sec. 130
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, ROBBERY CONTRARY TO SECTION 344 OF THE CRIMINAL CODE

    Particulars: In that he, on (date), at (indicate place of offence), did unlawfully assault (number, rank and name), with intent to steal from him.


    (C) [1 September 1999]

    NOTES

    (A) The purpose of section 130 of the National Defence Act is to give the character of service offences to all civil offences prescribed in statutes of the Parliament of Canada. Offences prescribed in provincial statutes are not service offences and cannot be tried by service tribunals. For example, an infraction of a Highway Traffic Act of a province would not be triable by a service tribunal.

    (B) It is to be noted that, although the Criminal Code and other federal statutes do not normally apply to acts done or omissions in foreign countries, by virtue of paragraph 130(1)(b) of the National Defence Act, civil offences prescribed in federal statutes are incorporated in the Code of Service Discipline and those offences may be tried by a service tribunal even if committed outside of Canada.

    (C)


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    103.615 - OFFENCES UNDER LAW APPLICABLE OUTSIDE CANADA

    (1) Section 132 of the National Defence Act provides:

    "132. (1) An act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Part, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).

    (2) Subject to subsection (3), where a service tribunal finds a person guilty of an offence under subsection (1), the service tribunal shall impose the punishment in the scale of punishments that it considers appropriate, having regard to the punishment prescribed by the law applicable in the place where the act or omission occurred and the punishment prescribed for the same or a similar offence in this Act, the Criminal Code or any other Act of Parliament.

    (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under subsection (2). (1 September 1999)

    (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 130 and to impose the punishment for that offence described in the section prescribing that offence.

    (5) Where an act or omission constituting an offence under subsection (1) contravenes the customs laws applicable in the place where the offence was committed, any officer appointed under the regulations for the purposes of this section may seize and detain any goods by means of or in relation to which the officer believes on reasonable grounds that the offence was committed and, if any person is convicted of the offence under subsection (1), the goods may, in accordance with regulations made by the Governor in Council, be forfeited to Her Majesty and may be disposed of as provided by those regulations."

    (2) The statement of the offence in a charge under section 132 should be in the following form:

    An offence punishable under section 132 of the National Defence Act, that is to say, (state the offence) contrary to (state the provision under which the offence is presacribed).

    SPECIMEN CHARGE

    Sec. 132
    N.D.A.

    AN OFFENCE PUNISHABLE UNDER SECTION 132 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, UNLAWFULLY SELLING BY RETAIL CERTAIN INTOXICATING LIQUOR WHEN NOT HOLDING A JUSTICE’S LICENCE AUTHORIZING THE HOLDING OF AN EXCISE LICENCE FOR THE SALE BY RETAIL OF THAT INTOXICATING LIQUOR CONTRARY TO SECTION ____ OF THE LICENSING ACT, 19– OF THE UNITED KINGDOM

    Particulars: In that he, on (date), at (indicate place of offence), did sell to (name) two imperial quarts of Canadian Club whiskey.


    (C) [1 September 1999]

    NOTE

    On a charge under section 132 of the National Defence Act, evidence is required as to what the foreign law was on the date of the alleged commission of the offence. The foreign law must be proved to the extent necessary to establish to the court beyond a reasonable doubt that the alleged act or omission constitutes an offence under it. Foreign law is proved by calling and examining one or more experts in that law.

    (C)


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    103.62 - CONVICTION OF RELATED OR LESS SERIOUS OFFENCES

    Sections 133, 134, 135 and 136 of the National Defence Act provide:

    "133. (1) A person charged with desertion may be found guilty of attempting to desert or of being absent without leave.

    (2) A person charged with attempting to desert may be found guilty of being absent without leave.

    134. (1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

    (2) A person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.

    135. A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

    136. Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence."

    (C)

    NOTES

    (A) It is not necessary to charge a person alternatively in respect of the various offences mentioned in sections 133 to 136 of the National Defence Act in order to convict him of one of the related or less serious offences. (1 September 1999)

    (B) Except in the cases mentioned in this section, and in sections 137 (see article 103.63 - Conviction of Attempt to Commit Offence) and 138 (see article 103.64 - Special Finding) of the National Defence Act, a service tribunal has no power to find a person guilty of any offence other than one with which he is actually charged.

    (C) Section 135 of the National Defence Act applies to a situation in which the maximum punishment varies in accordance with the circumstances, for example, imprisonment for life is prescribed as the maximum punishment if an act is done traitorously, and imprisonment for life or less punishment is the maximum punishment in other cases. If an accused is charged with having done an act traitorously and the court finds that the evidence shows that the accused committed the act but not traitorously, the court may make a finding of this fact. Such a finding is a finding of guilty but does not carry with it the higher degree of punishment associated with the original charge. (5 June 2008)

    (D) Section 136 of the National Defence Act relates to a case in which a person is charged with having committed a civil offence by virtue of a federal statute and that statute authorizes his conviction on some other offence. For example, if an accused is charged with having committed murder, the Criminal Code provides that a civil court may find him guilty of manslaughter and a court martial would have the same power.

    (C) [1 September 1999; 5 June 2008]


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    103.63 - CONVICTION OF ATTEMPT TO COMMIT OFFENCE

    Section 137 of the National Defence Act provides:

    "137. (1) Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of the attempt.

    (2) Where, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be convicted of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

    (3) An accused person who is convicted under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that he was charged with attempting to commit."

    (C)

    103.64 - SPECIAL FINDINGS

    Section 138 of the National Defence Act provides:

    "138. Where a service tribunal concludes that

    1. the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and
    2. the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,

    the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars."

    (C)

    NOTE

    Any special finding made at a summary trial should be recorded on the Record of Disciplinary Proceedings.

    (C) [30 November 1997]

    [103.65 to 103.99 inclusive: not allocated]