National Defence Act (R.S.C., 1985, c. N-5)

Act current to 2017-07-03 and last amended on 2015-06-01. Previous Versions

Marginal note:Sittings and hearings
  •  (1) The Court Martial Appeal Court may sit and hear appeals at any place or places, and the Chief Justice of the Court shall arrange for sittings and hearings as may be required.

  • Marginal note:Hearing of appeals and other matters

    (2) Every appeal shall be heard by three judges of the Court Martial Appeal Court sitting together, the decision of the majority of whom shall be the decision of the Court, and any other matter before the Court shall be disposed of by the Chief Justice or by such other judge or judges of the Court as the Chief Justice may designate for that purpose.

  • Marginal note:Notification of dissent

    (3) Where an appeal has been wholly or partially dismissed by the Court Martial Appeal Court and there has been dissent in the Court, the appellant shall forthwith be informed of that dissent.

  • R.S., 1985, c. N-5, s. 235;
  • R.S., 1985, c. 41 (1st Supp.), s. 13.
Marginal note:Superior court of record
  •  (1) The Court Martial Appeal Court is a superior court of record.

  • Marginal note:Evidence

    (2) The Court Martial Appeal Court may hear evidence including new evidence, as it may deem expedient and the Court may sit in camera or in public.

  • Marginal note:Staff

    (3) The officers, clerks and employees appointed to the Courts Administration Service shall perform the duties of their respective offices in relation to the Court Martial Appeal Court.

  • Marginal note:Authorization to execute Chief Justice’s functions

    (4) The Chief Justice of the Court Martial Appeal Court may authorize any other judges of the Court to exercise or perform any of the powers or functions of the Chief Justice under this section and sections 234 and 235.

  • R.S., 1985, c. N-5, s. 236;
  • 2002, c. 8, s. 154.
Marginal note:Expenses

 A judge of the Court Martial Appeal Court is entitled to be paid travel allowances under the Judges Act as for attendances as judge of the Federal Court or the superior court to which the judge so entitled belongs.

  • R.S., c. N-4, s. 201;
  • R.S., c. 10(2nd Supp.), s. 64;
  • 1984, c. 40, s. 47(F).

Disposition of Appeals by Court Martial Appeal Court of Canada

Marginal note:Powers on appeal against finding of guilty
  •  (1) On the hearing of an appeal respecting the legality of a finding of guilty on any charge, the Court Martial Appeal Court, if it allows the appeal, may set aside the finding and

    • (a) enter a finding of not guilty in respect of the charge; or

    • (b) direct a new trial by court martial on the charge.

  • Marginal note:Effect of setting aside finding of guilty

    (2) Where the Court Martial Appeal Court has set aside a finding of guilty and no other finding of guilty remains, the whole of the sentence ceases to have force and effect.

  • Marginal note:Sentence where findings partly set aside

    (3) Where the Court Martial Appeal Court has set aside a finding of guilty but another finding of guilty remains, the Court may, except where it allows an appeal under section 240.1,

    • (a) affirm the sentence imposed by the court martial if the court martial could legally have imposed that sentence on the finding of guilty that remains; or

    • (b) substitute for the sentence imposed by the court martial a sentence that is warranted in law.

  • R.S., 1985, c. N-5, s. 238;
  • 1991, c. 43, s. 23;
  • 1998, c. 35, s. 68;
  • 2008, c. 29, s. 23.
Marginal note:Substitution of finding
  •  (1) Where an appellant has been found guilty of an offence and the court martial could, on the charge, have found the appellant guilty under section 133, 134 or 136 of some other offence or could have found the appellant guilty of some other offence on any alternative charge that was laid and, on the actual finding, it appears to the Court Martial Appeal Court that the facts proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of guilty made by the court martial a finding of guilty of that other offence.

  • Marginal note:Sentence on substituted finding

    (2) On the substitution of a finding of guilty under subsection (1), the Court Martial Appeal Court may, except where it allows an appeal under section 240.1,

    • (a) affirm the sentence imposed by the court martial if the court martial could legally have imposed that sentence on the substituted finding of guilty; or

    • (b) substitute for the sentence imposed by the court martial a sentence that is warranted in law.

  • (3) [Repealed, 1991, c. 43, s. 24]

  • R.S., 1985, c. N-5, s. 239;
  • 1991, c. 43, s. 24;
  • 1998, c. 35, s. 69.
Marginal note:Appeal against not guilty finding
  •  (1) On the hearing of an appeal respecting the legality of a finding of not guilty on any charge, the Court Martial Appeal Court may, where it allows the appeal, set aside the finding and

    • (a) direct a new trial by court martial on that charge; or

    • (b) except if the finding is that of a General Court Martial, enter a finding of guilty with respect to the offence for which, in its opinion, the accused person should have been found guilty but for the illegality and

      • (i) impose the sentence in accordance with subsections (2) and (3), or

      • (ii) remit the matter to the court martial and direct it to impose a sentence in accordance with subsections (2) and (3).

  • Marginal note:Where no other finding of guilty

    (2) Where the Court Martial Appeal Court has entered a finding of guilty and there is no other finding of guilty, the Court or the court martial shall impose a sentence that is warranted in law.

  • Marginal note:Where another finding of guilty

    (3) Where the Court Martial Appeal Court has entered a finding of guilty and there is another finding of guilty, the Court or the court martial may

    • (a) affirm the sentence imposed by the court martial, if the court martial could legally have imposed the sentence on all of the findings; or

    • (b) substitute for the sentence imposed by the court martial a sentence that is warranted in law.

  • 1991, c. 43, s. 25;
  • 2008, c. 29, s. 24.
Marginal note:Appeal against decision

 On the hearing of an appeal respecting the legality of a decision referred to in paragraph 230.1(d), the Court Martial Appeal Court may, if it allows the appeal, set aside the decision and direct a new trial by court martial on the charge.

  • 1991, c. 43, s. 25;
  • 2008, c. 29, s. 25.
Marginal note:Substitution of new sentence where illegal sentence set aside

 On the hearing of an appeal respecting the legality of a sentence imposed by a court martial, the Court Martial Appeal Court, if it allows the appeal, may substitute for the sentence imposed by the court martial a sentence that is warranted in law.

  • R.S., 1985, c. N-5, s. 240;
  • 1991, c. 43, s. 26;
  • 1998, c. 35, s. 70.
Marginal note:Appeal against severity of sentence

 On the hearing of an appeal respecting the severity of a sentence, the Court Martial Appeal Court shall consider the fitness of the sentence and, if it allows the appeal, may, on such evidence as it thinks fit to require or receive, substitute for the sentence imposed by the court martial a sentence that is warranted in law.

  • 1991, c. 43, s. 26.
Marginal note:Appeal against finding of unfit or not responsible
  •  (1) On the hearing of an appeal against a finding of unfit to stand trial or not responsible on account of mental disorder, the Court Martial Appeal Court shall, subject to subsection (2), direct a new trial by court martial if it allows the appeal.

  • Marginal note:Finding after close of case for prosecution

    (2) Where the finding of unfit to stand trial was made after the close of the case for the prosecution, the Court may, notwithstanding that the finding is proper, allow the appeal, set aside the finding and enter a finding of not guilty on any charge if it is of the opinion that the accused should have been acquitted on the charge at the close of the case for the prosecution.

  • 1991, c. 43, s. 26;
  • 2008, c. 29, s. 26.
 
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