ARCHIVED - QR&O: Volume II - Chapter 115 Appeals From Courts Martial (Historical version: 1 September 2018 to 19 June 2022) 

“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.”

“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:

(a) 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;

(b) the legality of any finding of guilty;

(c) the legality of the whole or any part of the sentence;

(d) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

(e) the legality of a disposition made under section 201, 202 or 202.16

(f) the legality of a decision made under any of subsections 196.14(1) to (3);

(g) the legality of a decision made under subsection 227.01(2);

(h) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

(i) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

(j) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

(k) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).”

“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.”

“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:

(a) 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;

(b) the legality of any finding of not guilty;

(c) the legality of the whole or any part of the sentence;

(d) 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;

(e) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;

(f) 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);

(g) the legality of a decision made under any of subsections 196.14(1) to (3);

(h) the legality of a decision made under subsection 227.01(2);

(i) the legality of an order made under section 147.1 or 226.2 and, with leave of the Court or a judge of the Court, the reasonableness of any period imposed under section 147.2;

(j) the legality of an order made under section 148 and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under that section;

(k) the legality or, with leave of the Court or a judge of the Court, the severity of a restitution order made under section 203.9 or the legality of an order made under section 249.25; or

(l) the legality of a suspension of a sentence of imprisonment or detention and the legality or, with leave of the Court or a judge of the Court, the severity of any condition imposed under subsection 215(3).”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.

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

“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. (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,

(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.”

“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,

(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.”

“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 (18 July 2008)

(b) 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)

(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).

(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

(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.”

“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.”

“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.”

“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.”

“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.”

“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 (18 July 2008)

(c) make any other order that justice requires.”

“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.”

“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).”

“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.”

“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.”

“241.3 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.”

“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.”

“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.”

“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,

(a) 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;

(b) 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;

(c) 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

(d) give such directions as the judge thinks necessary for expediting the appeal.”

“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),

(a) 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

(b) 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).”

“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.

(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.