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Part 4
Appeals From Courts Martial


Every person subject to the CSD has, subject to subsection 232(3),49 the right to appeal to the Court Martial Appeal Court ("CMAC") 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;
  2. the legality of any finding of guilty;
  3. the legality of the whole or any part of the sentence;
  4. the legality50 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;51 or
  6. the legality of a decision made under any of subsections 196.14(1) to (3).

The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the CMAC 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;
  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 202.1652;
    • f.1.) the legality of an order for a stay of proceedings made under subsection 202.12(7); or
  7. the legality of a decision made under any subsections 196.14(1) to (3).

The possible dispositions which the CMAC may make of appeals are set out at sections 238 to 243 of the NDA and are generally similar to the powers of a civilian criminal appeal court. However, it must be remembered in appeals against sentence that the CMAC cannot substitute a sentence which the court martial could not have given. As we have seen, the sentencing system under the CSD is not the same as that applicable in civilian courts.

In rendering a decision the requirements of section 677 of the Criminal Code should be kept in mind: that, where there is a dissent in an appeal court, the formal judgment should specify the grounds in law of the dissent. While this does not strictly speaking apply to the CMAC, the Court should comply with this requirement which is designed to assist the Supreme Court of Canada in case of an appeal.

Section 248.1 of the NDA provides that 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 such 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) of the NDA and, if there is an appeal, until the determination of the appeal. Section 248.2 provides that every person sentenced to a period of detention or imprisonment by a court martial who has launched an appeal under Division 9 of the NDA has the right, if the person has not applied under section 248.1, to apply to a judge of the CMAC 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.53

A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against the decision of the CMAC:

  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.54

The Minister may appeal to the Supreme Court of Canada against the decision of the CMAC:

  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.55

49 Ss. 232(3) of the NDA provides that:

No appeal or application for leave to appeal under this Part 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.

50 "Legality" is deemed to relate either to questions of law alone or to questions of mixed law and fact. See s. 228 of the NDA.

51See s. 230 of the NDA.

52See s. 230.1 of the NDA.

53See s. 248.2 of the NDA. See also s. 248.3 of the NDA where the conditions which must be satisfied to obtain a release are outlined. Other provisions within the NDA dealing with release pending appeal include ss. 248.4 to 248.9.

54See ss. 245(1) of the NDA.

55See ss. 245(2) of the NDA.

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Date Modified:
 2014-03-30