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

Marginal note:Undertaking if application granted

248.5 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.

Marginal note:Release from detention or imprisonment

248.6 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.

Marginal note:Return to duty

248.7 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.

Marginal note:Review of conditions

• 248.8 (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.

Marginal note:Breach of undertaking

• 248.81 (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.

Marginal note:Rules

248.82 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.

Marginal note:Appeal to CMAC

• 248.9 (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.

Marginal note:Surrender into custody

248.91 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.

DIVISION 11Review

Review Authorities

Marginal note:Governor in Council

• 249 (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.

Marginal note:Royal prerogative

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

Quashing of Findings

Marginal note:Authority to quash

• 249.11 (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.