QR&Os: Volume II - Chapter 115
Appeals From Courts Martial

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Section 1 – Appeal Rights

115.01 – DEFINITION OF "LEGALITY" AND "ILLEGAL"

Section 228 of the National Defence Act provides:

"228. For the purposes of this Division, the expressions "legality" and "illegal" shall be deemed to relate either to questions of law alone or to questions of mixed law and fact."

(C) (1 September 1999)

115.02 – RIGHT TO APPEAL BY PERSON TRIED

Section 230 of the National Defence Act provides:

"230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

  1. with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

    (a.1) the decision to make an order under subsection 745.51(1) of the Criminal Code;
  2. the legality of any finding of guilty;
  3. the legality of the whole or any part of the sentence;
  4. the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;
  5. the legality of a disposition made under section 201, 202 or 202.16
  6. the legality of a decision made under any of subsections 196.14(1) to (3);
  7. the legality of a decision made under subsection 227.01(2)

(C) [12 September 2008; 14 June 2013 – heading]

NOTE

The right under paragraph 230(e) of the National Defence Act to appeal the legality of a disposition imposed by a court martial is subject to section 243 of the Act which states:

"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."

The purpose of section 243 is to avoid a situation where a person subject to a disposition imposed by a court martial has two rights of appeal to two different courts of appeal in respect of the same disposition. This possibility arises because a provincial review board constituted under the Criminal Code is required to review every disposition made by a court martial and the person subject to the disposition has a right of appeal from the review board to the provincial court of appeal.

(C)

115.03 – RIGHT TO APPEAL BY MINISTER

Section 230.1 of the National Defence Act provides:

"230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

  1. with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

    (a.1) the decision not to make an order under subsection 745.51(1) of the Criminal Code;
  2. the legality of any finding of not guilty;
  3. the legality of the whole or any part of the sentence;
  4. the legality of a decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge;
  5. the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;
  6. the legality of a disposition made under section 201, 202 or 202.16;

    (f.1) the legality of an order for a stay of proceedings made under subsection 202.121(7);
  7. the legality of a decision made under any of subsections 196.14(1) to (3); or
  8. the legality of a decision made under subsection 227.01(2).

(C) (5 June 2008)

NOTES

(A) In cases where the Minister, or counsel instructed by the Minister, exercises a right of appeal to the Court Martial Appeal Court under section 230.1 of the National Defence Act, the Director of Defence Counsel Services provides legal counsel for the appeal to the Respondent (see article 101.20 – Duties and Functions of Director of Defence Counsel Services). (1 September 1999)

(B) Sections 201, 202 and 202.16 authorize a court martial to make certain dispositions in respect of a person tried by the court where the court finds the person to be unfit to stand trial or not responsible for an offence on account of mental disorder.

(C) (1 September 1999)

115.031 – APPEAL RESPECTING THE LEGALITY OF A DECISION MADE UNDER SECTION 227.03, 227.1 OR 227.12 OF THE NATIONAL DEFENCE ACT

Section 230.2 of the National Defence Act provides:

“230.2 Subject to subsection 232(3), a person who applied for an exemption order under section 227.1 or a termination order under section 227.03 or 227.12
and the Minister or counsel instructed by the Minister have the right to appeal to the Court Martial Appeal Court in respect of the legality of the decision made by the court martial.”

(C) [14 June 2013]

NOTE

In cases where the Minister or counsel instructed by the Minister exercises a right of appeal to the Court Martial Appeal Court under section 230.2 of the National Defence Act, the Director of Defence Counsel Services provides legal counsel to the Respondent for the appeal (see article 101.20 – Duties and Functions of Director of Defence Counsel Services).

(C) [14 June 2013]

115.04 – PRESERVATION OF OTHER RIGHTS

Section 231 of the National Defence Act provides:

"231. The right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that person has under the law of Canada."

(C)


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Section 2 – Entry of Appeals

115.05 – NOTICE OF APPEAL

Subsections 232(1) and (2) of the National Defence Act provide:

"232. (1) An appeal or application for leave to appeal under this Division shall be stated on a form to be known as a Notice of Appeal, which shall contain particulars of the grounds on which the appeal is founded and shall be signed by the appellant.

(2) A Notice of Appeal is not invalid by reason only of informality or the fact that it deviates from the prescribed form."

(C) (1 September 1999)

115.06 – LIMITATION PERIOD

Subsections 232(3) and (4) of the National Defence Act provide:

"232. (3) No appeal or application for leave to appeal under this Division shall be entertained unless the Notice of Appeal is delivered within thirty days after the date on which the court martial terminated its proceedings to the Registry of the Court Martial Appeal Court or, in such circumstances as may be prescribed by the Governor in Council in regulations, to a person prescribed in those regulations.

(4) The Court Martial Appeal Court or a judge thereof may at any time extend the time within which a Notice of Appeal must be delivered."

(C) (1 September 1999)

NOTE

In any case in which a person has been convicted by a court martial, it is the responsibility of the officer of the court to provide that person with a copy of Form A of the Notice of Appeal (See article 115.08 – Forms of Notice of Appeal) immediately upon the termination of the proceedings of the court martial. It is essential that there be no delay in providing this form due to the time limit for the filing of an appeal.

(C)

115.07 – DELIVERY OF NOTICE OF APPEAL

(1) Subsection 232(5) of the National Defence Act provides:

“232. (5) Where a Notice of Appeal is delivered pursuant to subsection (3) to a person prescribed by the Governor in Council in regulations, the person shall forward the Notice of Appeal to the Registry of the Court Martial Appeal Court.”

(2) A person who has been tried by a court martial may, for the purposes of complying with subsection 232(3) of the National Defence Act, deliver a Notice of Appeal to an officer who is of or above the rank of captain instead of the Registry of the Court Martial Appeal Court if the requirements of the Canadian Forces or any other circumstances beyond the control of the person tried make it impractical to deliver the Notice of Appeal to the Registry of the Court Martial Appeal Court.

(3) The officer to whom a Notice of Appeal is delivered shall complete, using the following form, a Certificate of Receipt and forward it along with the Notice of Appeal to the Registry of the Court Martial Appeal Court:

CERTIFICATE OF RECEIPT

(To be completed if Notice of Appeal is received from Appellant)

he Notice of Appeal attached was delivered to me, duly completed, by _____ [service number and rank (if applicable) and name of Appellant] on the _____ day of _____ [month], _____ [year], at _____ [place where delivered].

_____ [signature of officer receiving this Notice of Appeal from Appellant]

_____ [service number, rank and name]

_____ [position and unit]

(G)[P.C. 2013-0613, effective 14 June 2013]

(C) [Note to the article 115.07:  repealed on 14 June 2013]

115.08 – FORMS OF NOTICE OF APPEAL

(1) A Notice of Appeal shall

  1. indicate clearly which of the matters set out in section 230, 230.1 or 230.2 of the National Defence Act constitute the subject of the appeal; and
  2. include sufficiently detailed particulars of the grounds of appeal to indicate the circumstances and principles upon which the appellant relies.

(2) A Notice of Appeal should be in Form A for an appeal by a person tried by a court martial and in Form B for an appeal by the Minister.

FORM A
NOTICE OF APPEAL AND OF APPLICATION FOR LEAVE TO APPEAL

(FOR AN APPEAL BY A PERSON TRIED BY COURT MARTIAL)

IN THE COURT MARTIAL APPEAL COURT OF CANADA

BETWEEN: _____ [Name of person and rank, if applicable] Appellant

AND

HER MAJESTY THE QUEEN Respondent

NOTICE OF APPEAL

TAKE NOTICE that the Appellant (click applicable option)

_____ appeals (indicate which of the matters set out in section 230 or 230.2 of the National Defence Act constitute the subject of the appeal) of the (General or Standing) Court Martial which terminated its proceedings on (day/month/year).

_____ applies for leave to appeal I and, if leave is granted, appeals (indicate which of the matters set out in section 230 or 230.2 of the National Defence Act constitute the subject of the appeal) of the (General or Standing) Court Martial which terminated its proceedings on (day/month/year).

THE GROUNDS OF APPEAL are as follows: (Provide detailed particulars of the grounds of appeal indicating the circumstances and principles on which the appeal relies.)

All documents may be served to the following address:

DATED at (city), (province), this (day) of (month), (year).

_____ [Signature of Appellant or Counsel]

_____ [Name, address and telephone and facsimile numbers of Appellant or Counsel]

TO: (Names and addresses of Respondent’s Counsel and the Court Martial Administrator)

NOTE: No appeal or application for leave to appeal shall be entertained unless, within 30 days after the date on which the court martial terminated its proceedings, a Notice of Appeal is delivered to the Registry of the Court Martial Appeal Court, or to an officer who is of or above the rank of captain in accordance with paragraph 115.07(2) of the Queen’s Regulations and Orders for the Canadian Forces.


FORM B
NOTICE OF APPEAL AND NOTICE OF APPLICATION FOR LEAVE TO APPEAL

(FOR AN APPEAL BY THE MINISTER)

IN THE COURT MARTIAL APPEAL COURT OF CANADA

BETWEEN: HER MAJESTY THE QUEEN Appellant

AND

(Name of person and rank, if applicable) Respondent

NOTICE OF APPEAL

TAKE NOTICE that the Minister of National Defence (click applicable option)

_____ appeals (indicate which of the matters set out in section 230 or 230.2 of the National Defence Act constitute the subject of the appeal) of the (General or Standing) Court Martial which terminated its proceedings on (day/month/year).

_____ applies for leave to appeal I and, if leave is granted, appeals (indicate which of the matters set out in section 230 or 230.2 of the National Defence Act constitute the subject of the appeal) of the (General or Standing) Court Martial which terminated its proceedings on (day/month/year).

THE GROUNDS OF APPEAL are as follows: (Provide detailed particulars of the grounds of appeal indicating the circumstances and principles on which the appeal relies.)

All documents may be served to the Appellant’s Counsel below.

DATED at (city), (province), this (day) of (month), (year).

_____ [Signature of Appellant’s Counsel]

_____ [Name, address and telephone and facsimile numbers of Appellant’s Counsel]

TO: (Names and addresses of Respondent and Respondent’s Counsel, if applicable, and the Court Martial Administrator)

(G) [P.C. 2008-1015 effective 5 June 2008; P.C. 2013-0613 effective 14 June 2013 – (1)(a), form A and form B]

(C) [115.09: repealed on 14 June 2013]


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Section 3 – Court Martial Appeal Court of Canada

115.10 – CONSTITUTION OF COURT MARTIAL APPEAL COURT

Section 234 of the National Defence Act provides:

"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.

(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.

(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.

(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.

(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.

(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.

(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.

(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."

(C) (1 September 1999)

115.11 – RULES OF APPEAL PROCEDURE

Section 244 of the National Defence Act provides:

"244. (1) The Chief Justice of the Court Martial Appeal Court may, with the approval of the Governor in Council, make rules respecting

  1. the seniority of members of the Court for the purpose of presiding at appeals;
  2. the practice and procedure to be observed at hearings;
  3. the conduct of appeals;

    (c.1) the conduct of reviews of directions made under Division 3;
  4. the production of the minutes of the proceedings of any court martial in respect of which an appeal is taken;
  5. the production of all other documents and records relating to an appeal;
  6. the extent to which new evidence may be introduced;
  7. the circumstances in which, on the hearing of an appeal, the appellant may attend or appear before the Court;
  8. 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
  9. 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.

(2) No rule made under this section has effect until it has been published in the Canada Gazette."

(C) (1 September 1999)

NOTE

Pursuant to section 244 of the National Defence Act, the Chief Justice of the Court Martial Appeal Court has issued the Court Martial Appeal Rules. See Appendix 1.2.

(C)


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Section 4 – Powers To Dispose of Appeals

115.12 – APPEAL RESPECTING THE LEGALITY OF A FINDING OF GUILTY

Section 238 of the National Defence Act provides:

"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

  1. enter a finding of not guilty in respect of the charge; or
  2. direct a new trial by court martial on the charge. (18 July 2008)

(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.

(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,

  1. 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
  2. substitute for the sentence imposed by the court martial a sentence that is warranted in law."

(C) (18 July 2008)

115.13 – POWER TO SUBSTITUTE A FINDING OF GUILTY

Section 239 of the National Defence Act provides:

"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.

(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,

  1. 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
  2. substitute for the sentence imposed by the court martial a sentence that is warranted in law."

(C) (1 September 1999)

115.14 – APPEAL RESPECTING THE LEGALITY OF FINDING OF NOT GUILTY

Section 239.1 of the National Defence Act provides:

"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

  1. direct a new trial by court martial on that charge; or (18 July 2008)
  2. except where 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 (18 July 2008)
    1. impose the sentence in accordance with subsections (2) and (3), or
    2. remit the matter to the court martial and direct it to impose a sentence in accordance with subsections (2) and (3).

(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.

(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

  1. affirm the sentence imposed by the court martial, if the court martial could legally have imposed the sentence on all of the findings; or
  2. substitute for the sentence imposed by the court martial a sentence that is warranted in law."

(C) (18 July 2008)

115.15 – APPEAL RESPECTING THE LEGALITY OF SENTENCE

Section 240 of the National Defence Act provides:

"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."

(C) (1 September 1999)

115.16 – APPEAL RESPECTING THE SEVERITY OF SENTENCE

Section 240.1 of the National Defence Act provides:

"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."

(C)

115.17 – APPEAL RESPECTING A FINDING OF UNFIT OR NOT RESPONSIBLE

Section 240.2 of the National Defence Act provides:

“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. (18 July 2008)

(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."

(C) (18 July 2008)

115.18 – APPEAL RESPECTING A DECISION REFERRED TO IN PARAGRAPH 230.1(D) OF THE NATIONAL DEFENCE ACT

Section 239.2 of the National Defence Act provides:

“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.”

(C) (18 July 2008)

115.19 – APPEAL RESPECTING THE LEGALITY OF A DISPOSITION UNDER SECTION 201, 202 OR 202.16 OF THE NATIONAL DEFENCE ACT

Section 240.3 of the National Defence Act provides:

"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

  1. make any disposition under section 201 or 202.16 that the court martial could have made;
  2. 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 (18 July 2008)
  3. make any other order that justice requires."

(C) (18 July 2008)

115.191 – APPEAL RESPECTING THE LEGALITY OF AN ORDER MADE UNDER SUBSECTION 202.121(7) OF THE NATIONAL DEFENCE ACT

Section 240.4 of the National Defence Act provides

“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.

(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.”

(C) (5 June 2008)

115.192 – APPEAL RESPECTING THE LEGALITY OF A DECISION MADE UNDER SUBSECTION 227.01(2), 227.04(1), 227.1(4) OR 227.13(1) OF THE NATIONAL DEFENCE ACT

Section 240.5 of the National Defence Act provides:

“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.

(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.

(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.

(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).”

(C) [14 June 2013]

115.193 – SPECIAL POWER TO DISALLOW APPEAL

Section 241 of the National Defence Act provides:

“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.”

(C) [14 June 2013]


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Section 5 – New Trials And Sentences

115.20 – EFFECT OF NEW SENTENCE

Section 241.1 of the National Defence Act provides:

"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."

(C)

(115.21: REPEALED 1 September 1999)

115.22 – EFFECT OF AN ORDER FOR A NEW TRIAL

Section 241.3 of the National Defence Act provides:

"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."

(C)

NOTE

Where the Court Martial Appeal Court allows an appeal against conviction on a charge and issues a direction that a new trial be held, the finding of guilty on that charge is set aside. The Director Military Prosecutions has the responsibility under the National Defence Act for the preferring of charges to be tried by court martial and will review the case to determine whether the charge ought to be proceeded with.

(C) (1 September 1999)

115.23 – MITIGATION, COMMUTATION, REMISSION AND SUSPENSION OF NEW PUNISHMENTS

Section 242 of the National Defence Act provides:

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

(C)

NOTE

Section 242 of the National Defence Act makes clear that new punishments imposed by the Court Martial Appeal Court, pursuant to subsections 238(3), 239(2) and 239.1(3) and sections 240 and 240.1 of the National Defence Act are subject to mitigation, commutation, remission or suspension by military authorities.

(C)


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Section 6 – Special Provisions Related To Accused Persons Found Unfit Or Not Responsible

115.24 – AUTOMATIC SUSPENSION OF CERTAIN DISPOSITIONS

Subsection 233(1) of the National Defence Act provides:

"233. (1) Subject to subsection (2), where the disposition appealed from is a disposition made under section 202 or paragraph 202.16 (1)(a), the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal."

(C)

115.25 – DISCRETIONARY POWER TO SUSPEND DISPOSITIONS

Subsection 233(2) of the National Defence Act provides:

"233. (2) A judge of the Court Martial Appeal Court may, on application of any party who gives notice to each of the other parties within the time and in the manner prescribed under subsection 244(1), where the judge is satisfied that the mental condition of the accused justifies the taking of such action,

  1. by order, direct that the application of a disposition made under section 202 or paragraph 202.16(1)(a) not be suspended pending the determination of the appeal;
  2. by order, direct that the application of a disposition appealed from that was made under section 201 or paragraph 202.16(1)(b) or (c) be suspended pending determination of the appeal;
  3. where the application of a disposition is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (b), make such other disposition, other than a disposition under section 202 or paragraph 202.16(1)(a), in respect of the accused as is applicable and appropriate in the circumstances pending the determination of the appeal; and
  4. give such directions as the judge thinks necessary for expediting the appeal."

(C)

115.26 – EFFECT OF SUSPENSION OF DISPOSITION ON OTHER ORDERS

Section 233(3) of the National Defence Act provides:

"233. (3) Where the application of a disposition appealed from is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (2)(b),

  1. in the case where no disposition was in force in respect of the accused immediately before the coming into force of the disposition appealed from, any order for the interim release or detention of the accused that is in force immediately prior to the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c), pending the determination of the appeal; and
  2. in any other case, the disposition in force immediately before the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c)."

(C)


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Section 7 – Appeal from Court Martial Appeal Court

115.27 – APPEAL TO SUPREME COURT OF CANADA

Section 245 of the National Defence Act provides:

"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

  1. on any question of law on which a judge of the Court Martial Appeal Court dissents; or
  2. on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

(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

  1. on any question of law on which a judge of the Court Martial Appeal Court dissents; or
  2. on any question of law, if leave to appeal is granted by the 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.

(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."

(C) (1 September 1999)

(115.28: REPEALED 1 SEPTEMBER 1999)

(115.29 TO 115.99 INCLUSIVE: NOT ALLOCATED)