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

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Act current to 2021-12-23 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 9Appeals (continued)

Right to Appeal (continued)

Marginal note:Other rights preserved

 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.

  • R.S., c. N-4, s. 198

Entry of Appeals

Marginal note:Form

  •  (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.

  • R.S., 1985, c. N-5, s. 232
  • 1991, c. 43, s. 22
  • 1998, c. 35, s. 92
  • 2007, c. 5, s. 8(F)

Appeals from Dispositions

Marginal note:Automatic suspension of certain dispositions

  •  (1) Subject to subsection (2), where the disposition appealed from is a disposition made under section 202 or paragraph 202.16(1)(a), 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 or paragraph 202.16(1)(a) not 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).

  • R.S., 1985, c. N-5, s. 233
  • 1991, c. 43, s. 22

Court Martial Appeal Court of Canada

Marginal note:Court established

  •  (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.

  • R.S., 1985, c. N-5, s. 234
  • 1998, c. 35, s. 92
  • 2002, c. 8, s. 153

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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