Court Martial Appeal Court  of Canada

Court Martial Appeal Court of Canada

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Jurisdiction of the Court Martial Appeal Court of Canada

The Court Martial Appeal Court of Canada (CMAC) was created by the Parliament of Canada pursuant to its authority under s.101 of the Constitution Act,1867 to create additional courts "for the better administration of the laws of Canada". The principal laws of Parliament which the Court is called upon to administer are the National Defence Act and the Criminal Code.

As the name of the Court suggests, its main function is to hear appeals from courts martial which are military courts established under the National Defence Act. These tribunals hear cases under the Code of Service Discipline found in Part III and Part VII of the National Defence Act. To understand the jurisdiction of the CMAC it is necessary to know what persons and offences are covered by the Code of Service Discipline.

That Code applies to all members of the Canadian Forces as well as to civilian personnel accompanying a unit of the Canadian Forces on service or active service. The Code provides a system of disciplinary offences designed to further the good order and proper functioning of the Canadian Forces. It also makes most offences under the Criminal Code and certain other federal laws to be military offences as well if committed by those subject to military law. Normally when Canadian Forces are abroad Canadian military law is automatically applicable to them. While in Canada they are normally subjected to military law enforced before military courts unless the offence has little or nothing to do with their military role in which case they are dealt with by civilian courts. (The offences of murder, manslaughter, and abduction of a minor, if committed in Canada by military personnel, must be tried in civilian courts). In many respects the Code of Service Discipline is more pervasive than laws applicable to civilians in imposing criminal-type sanctions for misconduct.

The CMAC essentially performs the function of a provincial superior court of appellate criminal jurisdiction. Either the individual service person or the Minister of National Defence (representing the Crown) may appeal, with leave, the severity of any sentence imposed by a court martial. Either may appeal the legality of a finding of guilty or not guilty, as the case may be, or the legality of any sentence. The CMAC has other responsibilities in hearing appeals from courts martial on findings of fitness to stand trial, stays of proceedings, release pending trial, or release pending appeal. The CMAC has powers of disposition similar to those of any civilian appellate court: it can dismiss appeals, set aside convictions, order new trials, substitute a finding of guilty on another charge where the court martial could have so found, or substitute for any sentence imposed by a court martial the sentence it considers fit.

On questions of law there is a right of appeal to the Supreme Court of Canada from the CMAC where one of the CMAC judges dissented on that question, and an appeal with leave if the CMAC judges were unanimous.

Recent amendments to the National Defence Act provide that, where the Minister has received from a person convicted by a court martial a petition for a new trial based on new evidence, the Minister may refer the petition to the CMAC for a hearing as if it were an appeal. Alternatively he may refer the petition or a question related to it to seek the opinion of the CMAC.

(For more information see Overview of Canadian Military Law and Courts Martial).


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