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

Full Document:  

Act current to 2021-11-17 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 10Release Pending Appeal (continued)

Marginal note:Rules

 The Chief Justice of the Court Martial Appeal Court, with the approval of the Governor in Council, may make rules respecting applications under sections 248.2, 248.8 and 248.81.

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

Marginal note:Appeal to CMAC

  •  (1) The following persons, namely,

    • (a) a person whose application to be released from detention or imprisonment pursuant to this Division is refused, and

    • (b) a person who is the subject of an order under section 248.81

    may appeal that decision or order to the Court Martial Appeal Court.

  • Marginal note:Idem

    (2) The Canadian Forces may appeal any direction under this Division that a person be released from detention or imprisonment or any order under section 248.81.

  • Marginal note:Grounds may be considered

    (3) When hearing an appeal under this section, the Court Martial Appeal Court may, in all cases where an appeal has been filed, take into consideration the grounds of appeal.

  • Marginal note:Application of provisions

    (4) The provisions of this Division apply, with such modifications as the circumstances require, to any appeal under this section.

  • R.S., 1985, c. 31 (1st Supp.), s. 57
  • 1998, c. 35, ss. 80, 92

Marginal note:Surrender into custody

 A person released pending appeal under this Division may surrender himself or herself into custody at any time to serve a sentence of detention or imprisonment imposed on the person.

  • 1998, c. 35, s. 81

DIVISION 11Review

Review Authorities

Marginal note:Governor in Council

  •  (1) The review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.

  • Marginal note:Application necessary

    (2) The review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff.

  • Marginal note:Chief of the Defence Staff and other military authorities

    (3) The review authorities in respect of findings of guilty made and punishments imposed by persons presiding at summary trials are the Chief of the Defence Staff and such other military authorities as are prescribed by the Governor in Council in regulations.

  • Marginal note:When authorities may act

    (4) A review authority in respect of any finding of guilty made and any punishment imposed by a person presiding at a summary trial may act on its own initiative or on application of the person found guilty made in accordance with regulations made by the Governor in Council.

  • R.S., 1985, c. N-5, s. 249
  • 1998, c. 35, s. 82

Marginal note:Royal prerogative

 Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.

  • 1998, c. 35, s. 82

Quashing of Findings

Marginal note:Authority to quash

  •  (1) Any finding of guilty made by a service tribunal may be quashed by a review authority.

  • Marginal note:Effect of complete quashing

    (2) Where no other finding of guilty remains after a finding of guilty has been quashed under subsection (1), the whole of the sentence ceases to have force and effect and the person who had been found guilty may be tried as if no previous trial had been held.

  • Marginal note:Effect of partial quashing

    (3) Where another finding of guilty remains after a finding of guilty has been quashed under subsection (1) and any punishment included in the sentence is in excess of the punishment authorized in respect of any remaining finding of guilty or is, in the opinion of the review authority that made the decision to quash, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

  • 1998, c. 35, s. 82

Substitution of Findings

Marginal note:Substitution of illegal and unsubstantiated findings

  •  (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.

  • 1998, c. 35, s. 82

Substitution of Punishments

Marginal note:Authority to substitute punishment

 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.

  • 1998, c. 35, s. 82

Mitigation, Commutation and Remission of Punishments

Marginal note:Authority to mitigate, commute and remit punishments

 A review authority may mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal.

  • 1998, c. 35, s. 82

Conditions Applicable to New Punishments

Marginal note:Conditions

 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.

  • 1998, c. 35, s. 82

Petition for New Trial

Marginal note:Right to petition on new evidence

  •  (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.

  • 1998, c. 35, s. 82

DIVISION 12Miscellaneous Provisions

Right to be Represented

Marginal note:Right to be represented

 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.

  • 1998, c. 35, s. 82

Defence Counsel Services

Marginal note:Appointment

  •  (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.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 71

Marginal note:Duties and functions

 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.

  • 1998, c. 35, s. 82

Marginal note:Relationship to Judge Advocate General

  •  (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.

  • 1998, c. 35, s. 82

Marginal note:Barristers and advocates to assist

  •  (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).

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 72(F)

Witnesses at Courts Martial and before Commissioners

Marginal note:Summonses to witnesses

  •  (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.

  • 1998, c. 35, s. 82

Warrant for Arrest on Non-Appearance of Accused

Marginal note:Non-appearance of accused

 Where an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused person

  • (a) fails to appear as summoned or ordered; or

  • (b) having appeared before the court martial, fails to attend before the court martial as required.

  • 1998, c. 35, s. 82

Effect of New Punishment

Marginal note:Force and effect

 Where a new punishment, by reason of substitution or commutation, replaces a punishment imposed by a service tribunal, the new punishment has force and effect as if it had been imposed by the service tribunal in the first instance and the provisions of the Code of Service Discipline apply accordingly but, where the new punishment involves incarceration, the term of the new punishment shall be reckoned from the date of substitution or commutation, as the case may be.

  • 1998, c. 35, s. 82

Restitution of Property

Marginal note:Restitution of property in case of conviction

  •  (1) A service tribunal that convicts or discharges absolutely a person of an offence shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

  • Marginal note:Restitution where no conviction, but offence committed

    (2) Where an accused person is tried for an offence but is not convicted and it appears to the service tribunal that an offence has been committed, the service tribunal may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

  • Marginal note:Exceptions

    (3) An order shall not be made in respect of

    • (a) property to which an innocent purchaser for value has acquired lawful title;

    • (b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or

    • (c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.

  • Marginal note:Execution of order for restitution

    (4) An order made under this section shall be executed by the persons by whom the process of the service tribunal is ordinarily executed.

  • 1998, c. 35, s. 82
  • 2013, c. 24, s. 74
 
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