GreatNorthCollective/greatnorth-canada-federal-laws-text huggingface dataset:
National Defence Act — N-5 234
Court established 234 (1) There is hereby established a Court Martial Appeal Court of Canada, which shall hear and determine all appeals referred to it under this Division. Judges (2) The judges of the Court Martial Appeal Court are (a) not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and (b) any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council. Deputy judges of the Court (2.1) Subject to subsection (2.2), any former judge of the Court Martial Appeal Court may, at the request of the Chief Justice of that Court made with the approval of the Governor in Council, act as a judge of the Court and while so acting has all the powers of a judge of the Court and shall be referred to as a deputy judge of the Court. Approval of Governor in Council (2.2) The Governor in Council may approve the making of requests under subsection (2.1) in general terms or for particular periods or purposes, and may limit the number of persons who may act under that subsection. Salary (2.3) A person who acts as a judge under subsection (2.1) shall be paid a salary for the period he or she acts at the rate fixed by the Judges Act for a judge of the Federal Court of Appeal or the Federal Court, other than a Chief Justice, less any amount otherwise payable to him or her under that Act in respect of that period, and shall also be paid the travel allowances that a judge is entitled to be paid under the Judges Act . Giving of judgment after judge ceases to hold office (2.4) If a judge of the Court Martial Appeal Court resigns his or her office or is appointed to another court or otherwise ceases to hold office, he or she may, at the request of the Chief Justice of the Court Martial Appeal Court, at any time within eight weeks after that event give judgment in any cause, action or matter previously tried by or heard before him or her as if he or she had continued in office. Chief Justice (3) The Governor in Council shall designate one of the judges of the Court Martial Appeal Court to be the Chief Justice thereof, who shall preside, when present, at any sittings of the Court and shall, subject to subsection (4), appoint another judge to preside at any sittings of the Court at which the Chief Justice is not present. Absence or incapacity of Chief Justice (4) Where the office of Chief Justice is vacant, or the Chief Justice is absent from Canada or is unable or unwilling to act, his powers shall be exercised and his duties performed by the senior judge who is in Canada and is able and willing to Act. R.S., 1985, c. N-5, s. 234; 1998, c. 35, s. 92; 2002, c. 8, s. 153
National Defence Act — N-5 235
Sittings and hearings 235 (1) The Court Martial Appeal Court may sit and hear appeals at any place or places, and the Chief Justice of the Court shall arrange for sittings and hearings as may be required. Hearing of appeals and other matters (2) Every appeal shall be heard by three judges of the Court Martial Appeal Court sitting together, the decision of the majority of whom shall be the decision of the Court, and any other matter before the Court shall be disposed of by the Chief Justice or by such other judge or judges of the Court as the Chief Justice may designate for that purpose. Notification of dissent (3) Where an appeal has been wholly or partially dismissed by the Court Martial Appeal Court and there has been dissent in the Court, the appellant shall forthwith be informed of that dissent. R.S., 1985, c. N-5, s. 235; R.S., 1985, c. 41 (1st Supp.), s. 13
National Defence Act — N-5 236
Superior court of record 236 (1) The Court Martial Appeal Court is a superior court of record. Evidence (2) The Court Martial Appeal Court may hear evidence including new evidence, as it may deem expedient and the Court may sit in camera or in public. Staff (3) The officers, clerks and employees appointed to the Courts Administration Service shall perform the duties of their respective offices in relation to the Court Martial Appeal Court. Authorization to execute Chief Justice’s functions (4) The Chief Justice of the Court Martial Appeal Court may authorize any other judges of the Court to exercise or perform any of the powers or functions of the Chief Justice under this section and sections 234 and 235. R.S., 1985, c. N-5, s. 236; 2002, c. 8, s. 154
National Defence Act — N-5 237
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. R.S., c. N-4, s. 201; R.S., c. 10(2nd Supp.), s. 64; 1984, c. 40, s. 47(F)
National Defence Act — N-5 238
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. 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. 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. R.S., 1985, c. N-5, s. 238; 1991, c. 43, s. 23; 1998, c. 35, s. 68; 2008, c. 29, s. 23
National Defence Act — N-5 239
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. 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] R.S., 1985, c. N-5, s. 239; 1991, c. 43, s. 24; 1998, c. 35, s. 69
National Defence Act — N-5 239.1
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). 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. 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. 1991, c. 43, s. 25; 2008, c. 29, s. 24
National Defence Act — N-5 239.2
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. 1991, c. 43, s. 25; 2008, c. 29, s. 25
National Defence Act — N-5 240
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. R.S., 1985, c. N-5, s. 240; 1991, c. 43, s. 26; 1998, c. 35, s. 70
National Defence Act — N-5 240.1
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. 1991, c. 43, s. 26
National Defence Act — N-5 240.2
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. 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. 1991, c. 43, s. 26; 2008, c. 29, s. 26
National Defence Act — N-5 240.3
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. 1991, c. 43, s. 26; 2008, c. 29, s. 27
National Defence Act — N-5 240.4
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. 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. 2005, c. 22, s. 60
National Defence Act — N-5 240.5
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. 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. 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. 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). 2007, c. 5, s. 9; 2010, c. 17, s. 60; 2013, c. 24, s. 107(F)
National Defence Act — N-5 241
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. R.S., 1985, c. N-5, s. 241; 1998, c. 35, s. 92
National Defence Act — N-5 241.1
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. 1991, c. 43, s. 27
National Defence Act — N-5 241.3
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. 1991, c. 43, s. 27
National Defence Act — N-5 242
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. R.S., 1985, c. N-5, s. 242; 1991, c. 43, s. 28 2019, c. 15, s. 39
National Defence Act — N-5 243
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. R.S., 1985, c. N-5, s. 243; 1991, c. 43, s. 29
National Defence Act — N-5 244
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. Publication (2) No rule made under this section has effect until it has been published in the Canada Gazette . R.S., 1985, c. N-5, s. 244; 1998, c. 35, s. 72
National Defence Act — N-5 245
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. 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. 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. 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
National Defence Act — N-5 246 to 248
246 to 248 [Repealed, 1998, c. 35, s. 73]
National Defence Act — N-5 248.1
Release by court martial 248.1 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
National Defence Act — N-5 248.2
Release by judge of the CMAC 248.2 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
National Defence Act — N-5 248.3
Court may direct release 248.3 (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. 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. 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. R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 75 2019, c. 15, s. 40
National Defence Act — N-5 248.4
Right of representative of Canadian Forces 248.4 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)
National Defence Act — N-5 248.5
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. R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 77
National Defence Act — N-5 248.6
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. R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 92
National Defence Act — N-5 248.7
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. R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 92
National Defence Act — N-5 248.8
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. 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)