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

Marginal note:Expenses

237 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.

Disposition of Appeals by Court Martial Appeal Court of Canada

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.

Marginal note:Substitution of finding

• 239 (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]

Marginal note:Appeal against not guilty finding

• 239.1 (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.

Marginal note:Appeal against decision

239.2 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.

Marginal note:Substitution of new sentence where illegal sentence set aside

240 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.

Marginal note:Appeal against severity of sentence

240.1 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.

Marginal note:Appeal against finding of unfit or not responsible

• 240.2 (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.

Marginal note:Appeal against disposition

240.3 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.

Marginal note:Appeal

• 240.4 (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.

Marginal note:Appeal against order or decision

• 240.5 (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).