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

Substitution of Findings

Marginal note:Substitution of illegal and unsubstantiated findings

• 249.12 (1) A review authority may substitute a new finding for any finding of guilty that is made by a service tribunal and that is illegal or cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears that the service tribunal was satisfied of the facts establishing the offence specified or involved in the new finding.

• Marginal note:Substitution of finding in relation to other offence

  (2) A review authority may substitute for a finding of guilty made by a service tribunal a new finding of guilty of an offence, other than that of which the service tribunal found the offender guilty, if it appears that the facts proved the offender guilty of the other offence and the service tribunal could have found the offender guilty of the other offence on the charge under section 133, 134 or 136 or on any alternative charge that was laid.

• Marginal note:Effect on sentence

  (3) Where a new finding has been substituted under this section for a finding made by a service tribunal and any punishment included in the sentence passed by the service tribunal is in excess of the punishment authorized in respect of the new finding or is, in the opinion of the review authority that substituted the new finding, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

Substitution of Punishments

Marginal note:Authority to substitute punishment

249.13 A review authority may substitute for a sentence passed by a service tribunal in which is included an illegal punishment any new punishment or punishments that it considers appropriate.

Mitigation, Commutation and Remission of Punishments

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.

Conditions Applicable to New Punishments

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.

Petition for New Trial

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.

DIVISION 12Miscellaneous Provisions

Right to be Represented

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.

Defence Counsel Services

Marginal note:Appointment

• 249.18 (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Defence Counsel Services.

• Marginal note:Tenure of office

  (2) The Director of Defence Counsel Services holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

• Marginal note:Powers of inquiry committee

  (2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Re-appointment

  (3) The Director of Defence Counsel Services is eligible to be re-appointed on the expiration of a first or subsequent term of office.

Marginal note:Duties and functions

249.19 The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.

Marginal note:Relationship to Judge Advocate General

• 249.2 (1) The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.

• Marginal note:General instructions

  (2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services.

• Marginal note:Instructions must be public

  (3) The Director of Defence Counsel Services shall ensure that the general instructions and guidelines are available to the public.

Marginal note:Barristers and advocates to assist

• 249.21 (1) The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.

• Marginal note:Counsel

  (2) The Director of Defence Counsel Services may engage on a temporary basis the services of counsel to assist the Director of Defence Counsel Services.

• Marginal note:Remuneration

  (3) The Director of Defence Counsel Services may, subject to any applicable Treasury Board directives, establish the terms and conditions of engagement and fix the remuneration and expenses of counsel engaged under subsection (2).

Witnesses at Courts Martial and before Commissioners

Marginal note:Summonses to witnesses

• 249.22 (1) Every person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.

• Marginal note:Summonses to witnesses

  (2) Every person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.

• Marginal note:Production of documents

  (3) A person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue.