« Condamnation militaire » : différence entre les versions

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==General Principles==
{{quotation3|
; Canadian Forces not affected
5 Nothing in this Act affects any law relating to the government of the Canadian Forces.
<br>
R.S., c. C-34, s. 4.
|{{CCCSec2|5}}
|{{NoteUp|5}}
|{{terms-
|"Act" (s. 2)
|"Canadian Forces" (s. 2)
}}
}}
No one in any military force, domestic or foreign, can be exempted from the regular laws of Canada unless explicitly provided by legislation.<ref>
{{CanLIIRPC|Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts|fsldn|1943 CanLII 31 (SCC)|[1943] SCR 483}}{{perSCC|Duff CJ}}{{atp|497}} ("...the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.")<br>
</ref>
{{reflist|2}}
<!--
===Applicable Offences===
{{quotation1|
; Service trial of civil offences
130 (1) An act or omission
:(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
:(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
|[http://canlii.ca/t/7vjm#sec130 NDA]
}}
; Constitutionality
Section 130(1)(a) of the NDA does not violate s. 11(f){{CCRF}}.<ref>
{{CanLIIRP|Stillman|j1n56|2019 SCC 40 (CanLII)|436 DLR (4th) 193}}{{perSCC-H|Moldaver and Brown JJ}} (5:2)
</ref>
{{reflist|2}}
==Available Sentences==
Section 139 of the ''National Defence Act'' provides for the following available sentences:
{{quotation1|
; Scale of punishments
139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
:(a) imprisonment for life;
:(b) imprisonment for two years or more;
:(c) dismissal with disgrace from Her Majesty’s service;
:(d) imprisonment for less than two years;
:(e) dismissal from Her Majesty’s service;
:(f) detention;
:(g) reduction in rank;
:(h) forfeiture of seniority;
:(i) severe reprimand;
:(j) reprimand;
:(k) fine; and
:(l) minor punishments.
(2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.
<br>
R.S., 1985, c. N-5, s. 139; {{LegHistory90s|1998, c. 35}}, s. 35.
|[http://canlii.ca/t/7vjm#sec139 NDA]
}}
==Imprisonment==
{{quotation1|
; Imprisonment for shorter term
140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.
<br>
R.S., 1985, c. N-5, s. 140; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140 NDA]
}}
{{quotation1|
; Dismissal as accompanying punishment
140.1 (1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.
<br>
; Dismissal as accompanying punishment
(2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.
{{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140.1 NDA]
}}
{{quotation1|
; Reduction in rank as accompanying punishment
140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be
(a) in the case of an officer, to the lowest commissioned rank; and
(b) in the case of a non-commissioned member, to the lowest rank to which under the regulations the non-commissioned member can be reduced.
{{LegHistory90s|1998, c. 35}}, s. 36.
|[http://canlii.ca/t/7vjm#sec140.2 NDA]
}}
{{quotation1|
; Dismissal with disgrace
141 (1) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Division, impose a punishment of imprisonment for less than two years.
<br>
; Effective date of dismissal
(1.1) A punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.
<br>
; Consequences
(2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.
R.S., 1985, c. N-5, s. 141; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, ss. 37, 92.
|[http://canlii.ca/t/7vjm#sec141 NDA]
}}
{{quotation1|
; Detention
142 (1) The punishment of detention is subject to the following conditions:
:(a) detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; and
:(b) no officer may be sentenced to detention.
; Reduction in rank during detention
(2) If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.
R.S., 1985, c. N-5, s. 142; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 38.
|[http://canlii.ca/t/7vjm#sec142 NDA]
}}
{{quotation1|
; Reduction in rank
143 (1) The punishment of reduction in rank applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.
; Restrictions
(2) The punishment of reduction in rank does not
:(a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and
:(b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.
R.S., 1985, c. N-5, s. 143; R.S., 1985, c. 31 (1st Supp.), s. 60.
|[http://canlii.ca/t/7vjm#sec143 NDA]
}}
{{quotation1|
; Forfeiture of seniority
144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.
<br>
R.S., 1985, c. N-5, s. 144; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 39.
|[http://canlii.ca/t/7vjm#sec147 NDA]
}}
{{quotation1|
; Fine
145 (1) A fine must be imposed in a stated amount.
<br>
; Terms of payment
(2) The terms of payment of a fine are in the discretion of the service tribunal that imposes the fine.
<br>
; Variation of terms of payment
(3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.
<br>
R.S., 1985, c. N-5, s. 145; R.S., 1985, c. 31 (1st Supp.), s. 60; {{LegHistory90s|1998, c. 35}}, s. 39.
|[http://canlii.ca/t/7vjm#sec145 NDA]
}}
{{quotation1|
; Civil enforcement of fines
145.1 (1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.
<br>
; Effect of filing order
(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.
<br>
{{LegHistory10s|2013, c. 24}}, s. 21.
|[http://canlii.ca/t/7vjm#sec145.1 NDA]
}}
{{quotation1|
; Minor punishments
146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.
<br>
R.S., c. N-4, s. 125.
|[http://canlii.ca/t/7vjm#sec146 NDA]
}}
{{quotation1|
; Limitation
147 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.
R.S., c. N-4, s. 125.
|[http://canlii.ca/t/7vjm#sec147 NDA]
}}
==Prohibition Orders==
{{quotation1|
; Prohibition order
147.1 (1) Where a person is convicted by a court martial of an offence
:(a) in the commission of which violence against a person was used, threatened or attempted,
:(b) that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance,
:(c) relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, or
:(d) that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code,
the court martial shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court martial decides that it is so desirable, the court martial shall so order.
; Duration of prohibition order
(2) An order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.
; Application of order
(3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the perform­ance of their duties.
; Notification
(4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the ''Firearms Act'' to be notified of the order.
{{LegHistory90s|1995, c. 39}}, s. 176; {{LegHistory90s|1996, c. 19}}, s. 83.1; {{LegHistory10s|2012, c. 1}}, s. 50; {{LegHistory10s|2013, c. 24}}, s. 22.
|[http://canlii.ca/t/7vjm#sec147.1 NDA]
}}
{{quotation1|
; Requirement to surrender
147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,
:(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and
:(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,
and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147 NDA]
}}
{{quotation1|
; Forfeiture
147.3 (1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.
<br>
; Disposal
(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.
<br>
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.3 NDA]
}}
{{quotation1|
; Authorizations revoked or amended
147.4 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.4 NDA]
}}
{{quotation1|
; Return to owner
147.5 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,
:(a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and
:(b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,
the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
{{LegHistory90s|1995, c. 39}}, s. 176.
|[http://canlii.ca/t/7vjm#sec147.5 NDA]
}}
{{quotation1|
; Sentences
; One sentence only to be passed
148 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.
R.S., c. N-4, s. 126.
|[http://canlii.ca/t/7vjm#sec148 NDA]
}}
{{quotation1|
'''Incarceration under more than one Sentence'''
<br>
; Concurrent punishment
149 Where a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.
R.S., 1985, c. N-5, s. 149; 2011, c. 5, s. 7.
|[http://canlii.ca/t/7vjm#sec149 NDA]
}}
{{quotation1|
; Punishment for certain offences
149.2 (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
<br>
; Offender must be notified
(2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.
{{LegHistory00s|2001, c. 41}}, s. 99.
|[http://canlii.ca/t/7vjm#sec149.2 NDA]
}}
--->

Version du 21 juin 2024 à 20:51

Ang

Fr

General Principles

Canadian Forces not affected

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

– CCC (CanLII), (Jus.)

Note: 5


Termes définis: "Act" (s. 2) et "Canadian Forces" (s. 2)

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

  1. ↑ Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts, 1943 CanLII 31 (SCC), [1943] SCR 483, par Duff CJ, au p. 497 ("...the constitutional principle by which, that is to say, a soldier does not, in virtue of his military character, escape the jurisdiction of the civil courts of this country. Nothing short of legislative enactment, or its equivalent, can change this principle.")
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