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

Full Document:  

Act current to 2022-11-16 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 9Appeals (continued)

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 [Repealed, 1998, c. 35, s. 73]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

  •  (1) 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.

  • Marginal note:Consideration of victim’s safety and security

    (2) If the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, directs that the person be released, the court martial, military judge or judge shall include in the direction a statement that the safety and security of every victim of the alleged offence has been considered.

  • Marginal note:Copy to victim

    (3) The court martial, military judge or judge, as the case may be, shall, on request by a victim of the alleged offence, cause a copy of the direction to be given to the victim.

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

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 11Petition 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 that 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.

Marginal note:Royal prerogative

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

 [Repealed, 2019, c. 15, s. 41]

 [Repealed, 2019, c. 15, s. 41]

 [Repealed, 2019, c. 15, s. 41]

 [Repealed, 2019, c. 15, s. 41]

 [Repealed, 2019, c. 15, s. 41]

 [Repealed, 2019, c. 15, s. 41]

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
 
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