Chapter 8: Post-Trial Matters and Appeals

NOTICE OF APPEAL

Immediately after the termination of the court martial proceedings, DDCS counsel will discuss with the client the significance and the potential consequences of the verdict and, if applicable, the sentence. This discussion will include the rights of appeal by both the prosecution and the client.¹

In cases where a guilty verdict has been registered, the officer of the court² should provide³ the offender with Form A of the Notice of Appeal.⁴ DDCS counsel will

• give the client preliminary views respecting an appeal;
• review the appeal form with the client; and
• assist in completing the appeal form should this be necessary.

Except for those instances where a letter of recommendation to the Appeal Committee is required, this will terminate DDCS counsel's representation of the client respecting the court martial proceedings.

DDCS Directive 12

DDCS counsel shall advise their clients who have been found guilty of an offence of their right to appeal and of the procedure to follow. When possible, DDCS counsel will give preliminary advice as to the merits of a potential appeal. In cases where their clients are found not guilty, DDCS counsel shall advise them that the prosecution has a right of appeal.

REVIEW OF UNDERTAKINGS

Either the offender or the Director of Military Prosecutions may seek a review by the Court Martial Appeal Court of undertakings respecting release pending appeal.⁵ In such instances, DDCS counsel may represent the offender.⁶

The Court Martial Appeal Court may confirm or vary the conditions or may substitute other conditions.⁷ If the original conditions are varied or substituted, the offender is required to sign a fresh undertaking agreeing to comply with the varied or substituted conditions imposed by the court.⁸

CANCELLATION OF RELEASE PENDING APPEAL

The Director of Military Prosecutions may apply to either a military judge or the Court Martial Appeal Court for cancellation of a direction for an offender's release pending appeal.⁹ In such instances, DDCS counsel may represent the offender.¹⁰

If the application is brought before a military judge, the burden of persuasion is on the applicant (Director of Military Prosecutions) on a balance of probabilities to show that the release pending appeal should be cancelled. The procedure¹¹ at the cancellation hearing is similar to that at courts martial:¹²

• the respondent (offender) may object to the judge conducting the hearing;¹³
• the applicant (Director of Military Prosecutions) and respondent, respectively, may make an opening address;
• the applicant and respondent, respectively, adduce their evidence; and
• the applicant and the respondent, respectively, may make a closing address; the applicant has the right of reply to any address made by the respondent.

An offender whose release pending appeal has been cancelled is returned to custody. The military judge's determination may be appealed to the Court Martial Appeal Court by both the prosecution and the offender.¹⁴

THE COURT MARTIAL APPEAL COURT

The Court Martial Appeal Court¹⁵ hears appeals¹⁶ from all court martial proceedings respecting the following:

• the legality of the findings,¹⁷ the whole or any part of the sentence,¹⁸ the finding of unfit to stand trial or not responsible on account of mental disorder,¹⁹ decisions terminating proceedings on a charge,²⁰ and dispositions in respect of persons found to be unfit to stand trial or found to be not responsible on account of mental disorder;²¹
• with leave of the Court or a judge thereof, the severity of a sentence, unless the sentence is one fixed by law;²²
• applications for release pending appeal;²³ and
• orders by a military judge respecting applications to cancel a direction that an offender be released pending appeal.²⁴

DDCS provides legal counsel to the offender for both appeals initiated by the prosecution²⁵ and, with the approval of the Appeal Committee,²⁶ for appeals or applications for leave to appeal initiated by the offender.²⁷

Appeals or applications for leave to appeal to the Court Martial Appeal Court respecting findings, sentence, and findings and dispositions respecting fitness to stand trial are initiated by a Notice of Appeal²⁸ that must be filed with the Court Registry²⁹ within 30 days of the termination of court martial proceedings.³⁰

THE APPEAL COMMITTEE

An application to the Appeal Committee for provision of legal counsel by DDCS must be accompanied by a legal opinion provided by the lawyer who represented the offender at court martial indicating whether, in his or her opinion, the appeal has professional merit.³¹ In instances where offenders were represented at court martial by civilian counsel, it is normally the responsibility of civilian counsel to provide the opinion. DDCS will, however, provide the required opinion should civilian counsel fail to so do.

Cases concerning applications for extension of time to file an appeal indicate that the higher standard on that issue is that of a "reasonable chance of success"; the lower standard is that of an "arguable case".³²

Offenders applying for provision of DDCS counsel for appeals or applications for leave to appeal have no right to submit a grievance respecting any matter concerning the Appeal Committee.³³

DDCS Directive 13

In those cases where an offender who has been found guilty and sentenced by a court martial wishes to apply to the Appeal Committee for representation by DDCS, the DDCS counsel who acted at trial shall as soon as practical prepare a letter making recommendations respecting the merit of a potential appeal.

APPEALS TO THE SUPREME COURT OF CANADA

Both the Director of Military Prosecutions and the offender may appeal decisions of the Court Martial Appeal Court on any question of law³⁴

• on which a judge of the Court Martial Appeal Court dissents; or
• if leave to appeal is granted by the Supreme Court of Canada.

A person who is the subject of an appeal to the Supreme Court of Canada has the same entitlements to provision of DDCS counsel as for appeals to the Court Martial Appeal Court.

Footnotes

¹ NDA subs. 230.1 and s. 230, respectively.

² QR&O art. 111.14. The officer of the court is the senior court orderly appointed by the commanding officer of the accused's unit and is responsible for the efficient functioning of the proceedings. See also the Chief Military Judge guide Court Martial Procedures: Guide for Participants and Members of the Public.

³ See the Note to QR&O art. 115.06.

⁴ See QR&O art. 115.08.

⁵ NDA subs. 248.8(1).

⁶ While not specifically addressed in QR&O arts. 101.20(2) or (3) or 118.23, DDCS has interpreted those provisions to include hearings for review of conditions of undertakings as a matter for which representation may be provided by DDCS.

⁷ NDA subs. 248.8(1).

⁸ NDA subs. 248.8(2).

⁹ The application is made to a military judge if the release direction was made by a court martial (NDA subs. 248.81(2)(a)) and, if the release direction was made by the Court Martial Appeal Court, to that court (NDA subs. 248.81(2)(c)).

¹⁰ QR&O art. 118.23.

¹¹ QR&O art. 118.21 sets out the procedure to be followed at cancellation application hearings before a military judge.

¹² QR&O art. 118.22.

¹³ There is no provision in QR&O art. 118.21(3) regarding the right of the prosecution to object to the judge; however, this right may be available through QR&O art. 118.22.

¹⁴ NDA subs. 248.9(1)(b).

¹⁵ The Court Martial Appeal Court is established by NDA subs. 234(1). NDA subs. 234(2) provides that the judges comprising the court are judges of the Federal Court of Canada and of superior courts of criminal jurisdiction.

¹⁶ QR&O Ch. 115 contains the regulations respecting appeals to the Court Martial Appeal Court.

¹⁷ NDA subss. 230(b) and 230.1(b).

¹⁸ NDA subss. 230(c) and 230.1(c).

¹⁹ NDA subss. 230(d) and 230.1(e).

²⁰ NDA subs. 230.1(d).

²¹ NDA subss. 230(e) and 230.1(f).

²² NDA subss. 230(a) and 230.1(a).

²³ NDA subss. 248.9(1)(a) and (2).

²⁴ NDA subss. 248.9(1)(b) and (2).

²⁵ QR&O art. 101.20(2)(g).

²⁶ The Appeal Committee is established by QR&O art. 101.21(1) and is composed of a person appointed by the JAG and a person appointed by the Chief of the Defence Staff.

²⁷ QR&O art. 101.20(2)(h).

²⁸ NDA subs. 232(1).

²⁹ QR&O art. 115.07 provides that the Notice of Appeal may be delivered to a superior officer when it is impractical to deliver it to the Court Registry.

³⁰ NDA subs. 232(3). NDA subs. 232(4) provides that the court or a judge thereof may grant an extension of the 30 days.

³¹ QR&O art. 101.21(4). The term "professional merit" is otherwise not defined.

³² R. v. Waugh, [1993] NBJ No. 152 (NBQB).

³³ QR&O art. 101.21(7).

³⁴ NDA subss. 245(1) and (2).