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

Authorizations, Designations and Regulations

Marginal note:Regulations by Governor in Council

227.2 The Governor in Council may make regulations

• (a) respecting the means by which designated classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve are required to report under section 4, 4.1 or 4.3, or to provide notification under section 6, of the Sex Offender Information Registration Act to registration centres designated under paragraph (e);

• (b) designating classes of operations in respect of which a determination may be made under subsection 227.16(1);

• (c) authorizing persons or classes of persons in or outside Canada to collect information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve;

• (d) authorizing persons or classes of persons in or outside Canada to register information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve; and

• (e) designating places or classes of places in or outside Canada as registration centres for the purposes of the Sex Offender Information Registration Act and the area, or classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve, served by each registration centre.

Marginal note:Authorization

227.21 The Chief of the Defence Staff, the Provost Marshal, the Chief Military Judge or a commanding officer may authorize a person to communicate or disclose information, or give notice, under this Division on their behalf.

DIVISION 9Appeals

General Provisions

Marginal note:Definition of legality and illegal

228 For the purposes of this Division, the expressions legality and illegal shall be deemed to relate either to questions of law alone or to questions of mixed law and fact.

229 [Repealed, 1998, c. 35, s. 67]

Right to Appeal

Marginal note:Appeal by person tried

230 Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

• (a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

• (a.1) the decision to make an order under subsection 745.51(1) of the Criminal Code;

• (b) the legality of any finding of guilty;

• (c) the legality of the whole or any part of the sentence;

• (d) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

• (e) the legality of a disposition made under section 201, 202 or 202.16;

• (e.1) the legality of a finding made under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

• (f) the legality of a decision made under any of subsections 196.14(1) to (3);

• (g) the legality of a decision made under subsection 227.01(2);

• (h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

• (i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

• (i.1) the legality of a decision not to make an order under subsection 180.05(1) or of a decision to make or not to make an order under subsection 180.07(1);

• (j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

• (k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

Marginal note:Appeal by Minister

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

• (a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

• (a.1) the decision not to make an order under subsection 745.51(1) of the Criminal Code;

• (b) the legality of any finding of not guilty;

• (c) the legality of the whole or any part of the sentence;

• (d) the legality of a decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge;

• (e) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

• (f) the legality of a disposition made under section 201, 202 or 202.16;

• (f.01) the legality of a decision not to make a finding under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

• (f.1) the legality of an order for a stay of proceedings made under subsection 202.121(7);

• (g) the legality of a decision made under any of subsections 196.14(1) to (3);

• (h) the legality of a decision made under subsection 227.01(2);

• (i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

• (j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

• (j.1) the legality of a decision to make an order under subsection 180.05(1) or 180.07(1);

• (k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

• (l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).

Marginal note:Appeal from order

230.2 Subject to subsection 232(3), a person who applied for an exemption order under section 227.1 or a termination order under section 227.03 or 227.12 and the Minister or counsel instructed by the Minister have the right to appeal to the Court Martial Appeal Court in respect of the legality of the decision made by the court martial.

Marginal note:Other rights preserved

231 The right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that the person has under the law of Canada.

Entry of Appeals

Marginal note:Form

• 232 (1) An appeal or application for leave to appeal under this Division shall be stated on a form to be known as a Notice of Appeal, which shall contain particulars of the grounds on which the appeal is founded and shall be signed by the appellant.

• Marginal note:Validity

  (2) A Notice of Appeal is not invalid by reason only of informality or the fact that it deviates from the prescribed form.

• Marginal note:Limitation period

  (3) No appeal or application for leave to appeal under this Division shall be entertained unless the Notice of Appeal is delivered within thirty days after the date on which the court martial terminated its proceedings to the Registry of the Court Martial Appeal Court or, in such circumstances as may be prescribed by the Governor in Council in regulations, to a person prescribed in those regulations.

• Marginal note:Extension

  (4) The Court Martial Appeal Court or a judge thereof may at any time extend the time within which a Notice of Appeal must be delivered.

• Marginal note:Forwarding statement

  (5) Where a Notice of Appeal is delivered pursuant to subsection (3) to a person prescribed by the Governor in Council in regulations, the person shall forward the Notice of Appeal to the Registry of the Court Martial Appeal Court.

Appeals from Dispositions

Marginal note:Automatic suspension of certain dispositions

• 233 (1) Subject to subsection (2), if the disposition appealed from is a disposition made under section 202, the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

• Marginal note:Discretionary powers respecting suspension of dispositions

  (2) A judge of the Court Martial Appeal Court may, on application of any party who gives notice to each of the other parties within the time and in the manner prescribed under subsection 244(1), where the judge is satisfied that the mental condition of the accused justifies the taking of such action,

  • (a) by order, direct that the application of a disposition made under section 202 not be suspended pending the determination of the appeal;

  • (a.1) by order, direct that the application of a disposition made under paragraph 202.16(1)(a) be suspended pending the determination of the appeal;

  • (b) by order, direct that the application of a disposition appealed from that was made under section 201 or paragraph 202.16(1)(b) or (c) be suspended pending determination of the appeal;

  • (c) where the application of a disposition is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (b), make such other disposition, other than a disposition under section 202 or paragraph 202.16(1)(a), in respect of the accused as is applicable and appropriate in the circumstances pending the determination of the appeal; and

  • (d) give such directions as the judge thinks necessary for expediting the appeal.

• Marginal note:Effect of suspension of disposition

  (3) Where the application of a disposition appealed from is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (2)(b),

  • (a) in the case where no disposition was in force in respect of the accused immediately before the coming into force of the disposition appealed from, any order for the interim release or detention of the accused that is in force immediately prior to the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c), pending the determination of the appeal; and

  • (b) in any other case, the disposition in force immediately before the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c).

Court Martial Appeal Court of Canada

Marginal note:Court established

• 234 (1) There is hereby established a Court Martial Appeal Court of Canada, which shall hear and determine all appeals referred to it under this Division.

• Marginal note:Judges

  (2) The judges of the Court Martial Appeal Court are

  • (a) not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and

  • (b) any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council.

• Marginal note:Deputy judges of the Court

  (2.1) Subject to subsection (2.2), any former judge of the Court Martial Appeal Court may, at the request of the Chief Justice of that Court made with the approval of the Governor in Council, act as a judge of the Court and while so acting has all the powers of a judge of the Court and shall be referred to as a deputy judge of the Court.

• Marginal note:Approval of Governor in Council

  (2.2) The Governor in Council may approve the making of requests under subsection (2.1) in general terms or for particular periods or purposes, and may limit the number of persons who may act under that subsection.

• Marginal note:Salary

  (2.3) A person who acts as a judge under subsection (2.1) shall be paid a salary for the period he or she acts at the rate fixed by the Judges Act for a judge of the Federal Court of Appeal or the Federal Court, other than a Chief Justice, less any amount otherwise payable to him or her under that Act in respect of that period, and shall also be paid the travel allowances that a judge is entitled to be paid under the Judges Act.

• Marginal note:Giving of judgment after judge ceases to hold office

  (2.4) If a judge of the Court Martial Appeal Court resigns his or her office or is appointed to another court or otherwise ceases to hold office, he or she may, at the request of the Chief Justice of the Court Martial Appeal Court, at any time within eight weeks after that event give judgment in any cause, action or matter previously tried by or heard before him or her as if he or she had continued in office.

• Marginal note:Chief Justice

  (3) The Governor in Council shall designate one of the judges of the Court Martial Appeal Court to be the Chief Justice thereof, who shall preside, when present, at any sittings of the Court and shall, subject to subsection (4), appoint another judge to preside at any sittings of the Court at which the Chief Justice is not present.

• Marginal note:Absence or incapacity of Chief Justice

  (4) Where the office of Chief Justice is vacant, or the Chief Justice is absent from Canada or is unable or unwilling to act, his powers shall be exercised and his duties performed by the senior judge who is in Canada and is able and willing to Act.