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

Marginal note:Authority to mitigate, commute and remit punishments

249.14 A review authority may mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal.

Marginal note:Conditions

249.15 The following conditions apply where a new punishment under this Division replaces, by way of substitution or commutation, a punishment imposed by a service tribunal:

• (a) the new punishment may not be a punishment that could not legally have been imposed on the charges of which the offender was found guilty and in respect of which the findings have not been quashed or set aside by way of substitution;

• (b) the new punishment may not be higher in the scale of punishments than the punishment imposed in the first instance and, if the sentence passed included a punishment of incarceration, the new punishment may not involve a period of incarceration exceeding the period of incarceration included in that sentence;

• (c) where the new punishment is detention and the punishment that it replaces is imprisonment, the term of the detention after the date of alteration may in no case exceed the term of the imprisonment remaining to be served and, in any event, may not exceed ninety days; and

• (d) where the offence of which a person has been found guilty is an offence for which the punishment of imprisonment for life is mandatory under section 73, 74, 75 or 76, for which the punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is mandatory under section 92 or to which paragraph 130(2)(a) applies, the punishment may, subject to this section, be altered to any one or more of the punishments lower in the scale of punishments than the punishment provided for in that section or any other enactment prescribing the offence.

Marginal note:Right to petition on new evidence

• 249.16 (1) Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.

• Marginal note:Reference to CMAC for determination

  (2) The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.

• Marginal note:Reference to CMAC for opinion

  (3) The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion and the Court shall furnish its opinion accordingly.

• Marginal note:New trial

  (4) If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.

Marginal note:Right to be represented

249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council.