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

Full Document:  

Act current to 2022-05-02 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 9Appeals (continued)

Disposition of Appeals by Court Martial Appeal Court of Canada (continued)

Marginal note:Appeal against disposition

 On the hearing of an appeal respecting the legality of a disposition made under section 201, 202 or 202.16, the Court Martial Appeal Court may, where it allows the appeal, set aside the disposition and

  • (a) make any disposition under section 201 or 202.16 that the court martial could have made;

  • (b) except in the case of a disposition made by a General Court Martial, remit the matter to the court martial for a rehearing, in whole or in part, in accordance with any directions that the Court considers appropriate; or

  • (c) make any other order that justice requires.

  • 1991, c. 43, s. 26
  • 2008, c. 29, s. 27

Marginal note:Appeal

  •  (1) The Court Martial Appeal Court may allow an appeal against an order made under subsection 202.121(7) for a stay of proceedings, if the Court Martial Appeal Court is of the opinion that the order is unreasonable or cannot be supported by the evidence.

  • Marginal note:Effect

    (2) If the Court Martial Appeal Court allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused person is unfit to stand trial and the disposition made in respect of the accused person.

  • 2005, c. 22, s. 60

Marginal note:Appeal against order or decision

  •  (1) On the hearing of an appeal respecting the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1), the Court Martial Appeal Court, or another court hearing the appeal, may dismiss the appeal, allow it and order a new hearing, quash the order or make an order that may be made under that provision.

  • Marginal note:Requirements relating to notice

    (2) If the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.01(2), it shall cause the requirements set out in section 227.05 to be fulfilled.

  • Marginal note:Requirements relating to notice

    (3) If the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.04(1) or 227.13(1), it shall cause the Provost Marshal to be notified of the decision.

  • Marginal note:Removal of information from database

    (4) If the Court Martial Appeal Court or other court makes an exemption order that may be made under subsection 227.1(4), it shall also make the order referred to in subsection 227.1(6).

  • 2007, c. 5, s. 9
  • 2010, c. 17, s. 60
  • 2013, c. 24, s. 107(F)

Marginal note:Special power to disallow appeal

 Notwithstanding anything in this Division, the Court Martial Appeal Court may disallow an appeal if, in the opinion of the Court, to be expressed in writing, there has been no substantial miscarriage of justice.

  • R.S., 1985, c. N-5, s. 241
  • 1998, c. 35, s. 92

Marginal note:New sentence

 Where a new sentence is substituted under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the sentence imposed by the court martial ceases to have effect.

  • 1991, c. 43, s. 27

 [Repealed, 1998, c. 35, s. 71]

Marginal note:New trial

 Where the Court Martial Appeal Court directs a new trial on a charge under section 238, 239.1, 239.2 or 240.2, the accused person shall be tried again as if no trial on that charge had been held.

  • 1991, c. 43, s. 27

Marginal note:Powers to mitigate, commute, remit and suspend new punishment

 Where a punishment included in a sentence has been dealt with pursuant to subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to mitigation, commutation, remission or suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.

  • R.S., 1985, c. N-5, s. 242
  • 1991, c. 43, s. 28

Marginal note:Appeal deemed abandoned

 Where a review of a disposition in respect of which an appeal is taken under paragraph 230(e) by any person is commenced under the review provisions of the Criminal Code by that person, the appeal shall be deemed to have been abandoned.

  • R.S., 1985, c. N-5, s. 243
  • 1991, c. 43, s. 29

Rules of Appeal Procedure

Marginal note:Chief Justice may make rules

  •  (1) The Chief Justice of the Court Martial Appeal Court may, with the approval of the Governor in Council, make rules respecting

    • (a) the seniority of members of the Court for the purpose of presiding at appeals;

    • (b) the practice and procedure to be observed at hearings;

    • (c) the conduct of appeals;

    • (c.1) the conduct of reviews of directions made under Division 3;

    • (d) the production of the minutes of the proceedings of any court martial in respect of which an appeal is taken;

    • (e) the production of all other documents and records relating to an appeal;

    • (f) the extent to which new evidence may be introduced;

    • (g) the circumstances in which, on the hearing of an appeal, the appellant may attend or appear before the Court;

    • (h) the provision for and the payment of fees of counsel for an appellant or a respondent, other than the Minister;

    • (h.1) the awarding and regulating of costs in the Court in favour of or against appellants and respondents; and

    • (i) the circumstances in which an appeal may be considered to be abandoned for want of prosecution, and the summary disposition by the Court of such appeals and of appeals showing no substantial grounds.

  • Marginal note:Publication

    (2) No rule made under this section has effect until it has been published in the Canada Gazette.

  • R.S., 1985, c. N-5, s. 244
  • 1998, c. 35, s. 72

Appeal to Supreme Court of Canada

Marginal note:Appeal by person tried

  •  (1) A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court

    • (a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or

    • (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

  • Marginal note:Appeal by Minister

    (2) The Minister, or counsel instructed by the Minister for that purpose, may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court

    • (a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or

    • (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

  • Marginal note:Hearing and determination by Supreme Court of Canada

    (3) The Supreme Court of Canada, in respect of the hearing and determination of an appeal under this section, has the same powers, duties and functions as the Court Martial Appeal Court has under this Act, and sections 238 to 242 apply with such adaptations and modifications as the circumstances require.

  • Marginal note:When appeal deemed abandoned

    (4) An appeal to the Supreme Court of Canada that is not brought on for hearing by the appellant at the session of the Supreme Court of Canada during which the judgment appealed from was pronounced by the Court Martial Appeal Court, or at the next session of the Supreme Court of Canada, shall be deemed to be abandoned, unless otherwise ordered by the Supreme Court of Canada or a judge thereof.

  • R.S., 1985, c. N-5, s. 245
  • R.S., 1985, c. 34 (3rd Supp.), s. 14
  • 1997, c. 18, s. 134

 [Repealed, 1998, c. 35, s. 73]

DIVISION 10Release Pending Appeal

Marginal note:Release by court martial

 Every person sentenced to a period of detention or imprisonment by a court martial has, within twenty-four hours after being so sentenced, the right to apply to that court martial or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the expiration of the time to appeal referred to in subsection 232(3) and, if there is an appeal, until the determination of the appeal.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 74

Marginal note:Release by judge of the CMAC

 Every person sentenced to a period of detention or imprisonment by a court martial who appeals under Division 9 has the right, if the person has not applied under section 248.1, to apply to a judge of the Court Martial Appeal Court or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the determination of the appeal.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 74

Marginal note:Court may direct release

 On hearing an application to be released from detention or imprisonment, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released as provided for in sections 248.1 and 248.2 if the person establishes

  • (a) in the case of an application under section 248.1,

    • (i) that the person intends to appeal,

    • (ii) if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,

    • (iii) that the person will surrender himself into custody when directed to do so, and

    • (iv) that the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces; or

  • (b) in the case of an application under section 248.2,

    • (i) that the appeal is not frivolous,

    • (ii) if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,

    • (iii) that the person will surrender himself into custody when directed to do so, and

    • (iv) that the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 75

Marginal note:Right of representative of Canadian Forces

 On the hearing of an application to be released, counsel acting on behalf of the Canadian Forces shall be permitted to make representations if counsel so wishes after representations by or on behalf of the person making the application.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 76(F)

Marginal note:Undertaking if application granted

 If an application for release is granted, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released on giving an undertaking to

  • (a) remain under military authority;

  • (b) surrender himself or herself into custody when directed to do so; and

  • (c) comply with any other reasonable conditions that are stipulated.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 77

Marginal note:Release from detention or imprisonment

 Where a person is directed to be released from detention or imprisonment pursuant to this Division, the person in whose custody that person is shall forthwith release that person on his giving the undertaking referred to in section 248.5.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 92

Marginal note:Return to duty

 An officer or non-commissioned member who is released from detention or imprisonment pursuant to this Division shall be returned to duty unless the Chief of the Defence Staff, or an officer designated by the Chief of the Defence Staff, otherwise directs.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 92

Marginal note:Review of conditions

  •  (1) The conditions of an undertaking referred to in section 248.5 may, on application by the person who gave the undertaking or by counsel for the Canadian Forces, be reviewed by the Court Martial Appeal Court and that Court may

    • (a) confirm the conditions;

    • (b) vary the conditions; or

    • (c) substitute such other conditions as it sees fit.

  • Marginal note:New undertaking

    (2) Where the conditions of an undertaking referred to in section 248.5 have been varied or substituted pursuant to subsection (1), the person who gave the undertaking shall forthwith be placed in custody unless the person gives an undertaking to comply with such varied or substituted conditions.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, s. 78(F)

Marginal note:Breach of undertaking

  •  (1) Where, on application by counsel for the Canadian Forces, an authority referred to in subsection (2) is satisfied, on cause being shown, that an undertaking given by a person under section 248.5 has been breached or is likely to be breached, that authority may

    • (a) cancel the direction that authorized the person to be released and direct that the person be detained in custody; or

    • (b) direct that the person may remain at liberty on his giving a new undertaking in accordance with section 248.5.

  • Marginal note:Determination of authority

    (2) The authority to whom an application under subsection (1) may be made is

    • (a) where the undertaking was given in respect of a direction made pursuant to an application under section 248.1, a military judge; or

    • (b) subject to subsection (3), where the undertaking was given in respect of a direction made pursuant to an application under section 248.2, a judge of the Court Martial Appeal Court.

    • (c) [Repealed, 1998, c. 35, s. 79]

  • Marginal note:Exception

    (3) In the circumstances provided for in regulations made by the Governor in Council, the authority to whom an application under subsection (1) may be made in respect of a direction made pursuant to an application under section 248.2 is a military judge.

  • Marginal note:Right to make representations

    (4) The person referred to in subsection (1) has the right to be present at the hearing of the application referred to in that subsection and the right to make representations at that hearing.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1993, c. 34, s. 95(F)
  • 1998, c. 35, s. 79
 
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