National Defence Act

Marginal note:Powers on appeal against finding of guilty

• 238 (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.