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).

Marginal note:Special power to disallow appeal

241 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.

Marginal note:New sentence

241.1 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.

241.2 [Repealed, 1998, c. 35, s. 71]

Marginal note:New trial

241.3 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.

Marginal note:Powers to suspend new punishment

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

Marginal note:Appeal deemed abandoned

243 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.

Rules of Appeal Procedure

Marginal note:Chief Justice may make rules

• 244 (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.

Appeal to Supreme Court of Canada

Marginal note:Appeal by person tried

• 245 (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.

246 to 248 [Repealed, 1998, c. 35, s. 73]