248.1 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 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 expiration of the time to appeal referred to in subsection 232(3) and, if there is an appeal, until the determination of the appeal.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 74.

248.2 Every person sentenced to a period of detention or imprisonment by a court martial who appeals under Division 9 has the right, if the person has not applied under section 248.1, to apply to a judge of the Court Martial Appeal Court 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.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 74.

248.3 On hearing an application to be released from detention or imprisonment, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released as provided for in sections 248.1 and 248.2 if the person establishes

(a) in the case of an application under section 248.1,

(i) that the person intends to appeal,

(ii) if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,

(iii) that the person will surrender himself into custody when directed to do so, and

(iv) that the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces; or

(b) in the case of an application under section 248.2,

(i) that the appeal is not frivolous,

(ii) if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,

(iii) that the person will surrender himself into custody when directed to do so, and

(iv) that the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 75.

248.4 On the hearing of an application to be released, counsel acting on behalf of the Canadian Forces shall be permitted to make representations if counsel so wishes after representations by or on behalf of the person making the application.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 76(F).

248.5 If an application for release is granted, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released on giving an undertaking to

(a) remain under military authority;

(b) surrender himself or herself into custody when directed to do so; and

(c) comply with any other reasonable conditions that are stipulated.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 77.

248.6 Where a person is directed to be released from detention or imprisonment pursuant to this Division, the person in whose custody that person is shall forthwith release that person on his giving the undertaking referred to in section 248.5.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 92.

248.7 An officer or non-commissioned member who is released from detention or imprisonment pursuant to this Division shall be returned to duty unless the Chief of the Defence Staff, or an officer designated by the Chief of the Defence Staff, otherwise directs.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 92.

248.8 (1) The conditions of an undertaking referred to in section 248.5 may, on application by the person who gave the undertaking or by counsel for the Canadian Forces, be reviewed by the Court Martial Appeal Court and that Court may

(a) confirm the conditions;

(b) vary the conditions; or

(c) substitute such other conditions as it sees fit.

(2) Where the conditions of an undertaking referred to in section 248.5 have been varied or substituted pursuant to subsection (1), the person who gave the undertaking shall forthwith be placed in custody unless the person gives an undertaking to comply with such varied or substituted conditions.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, s. 78(F).

248.81 (1) Where, on application by counsel for the Canadian Forces, an authority referred to in subsection (2) is satisfied, on cause being shown, that an undertaking given by a person under section 248.5 has been breached or is likely to be breached, that authority may

(a) cancel the direction that authorized the person to be released and direct that the person be detained in custody; or

(b) direct that the person may remain at liberty on his giving a new undertaking in accordance with section 248.5.

(2) The authority to whom an application under subsection (1) may be made is

(a) where the undertaking was given in respect of a direction made pursuant to an application under section 248.1, a military judge; or

(b) subject to subsection (3), where the undertaking was given in respect of a direction made pursuant to an application under section 248.2, a judge of the Court Martial Appeal Court.

(c) [Repealed, 1998, c. 35, s. 79]

(3) In the circumstances provided for in regulations made by the Governor in Council, the authority to whom an application under subsection (1) may be made in respect of a direction made pursuant to an application under section 248.2 is a military judge.

(4) The person referred to in subsection (1) has the right to be present at the hearing of the application referred to in that subsection and the right to make representations at that hearing.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1993, c. 34, s. 95(F); 1998, c. 35, s. 79.

248.82 The Chief Justice of the Court Martial Appeal Court, with the approval of the Governor in Council, may make rules respecting applications under sections 248.2, 248.8 and 248.81.

R.S., 1985, c. 31 (1st Supp.), s. 57.

248.9 (1) The following persons, namely,

(a) a person whose application to be released from detention or imprisonment pursuant to this Division is refused, and

(b) a person who is the subject of an order under section 248.81

may appeal that decision or order to the Court Martial Appeal Court.

(2) The Canadian Forces may appeal any direction under this Division that a person be released from detention or imprisonment or any order under section 248.81.

(3) When hearing an appeal under this section, the Court Martial Appeal Court may, in all cases where an appeal has been filed, take into consideration the grounds of appeal.

(4) The provisions of this Division apply, with such modifications as the circumstances require, to any appeal under this section.

R.S., 1985, c. 31 (1st Supp.), s. 57; 1998, c. 35, ss. 80, 92.

248.91 A person released pending appeal under this Division may surrender himself or herself into custody at any time to serve a sentence of detention or imprisonment imposed on the person.

1998, c. 35, s. 81.

249. (1) The review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.

(2) The review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff.

(3) The review authorities in respect of findings of guilty made and punishments imposed by persons presiding at summary trials are the Chief of the Defence Staff and such other military authorities as are prescribed by the Governor in Council in regulations.

(4) A review authority in respect of any finding of guilty made and any punishment imposed by a person presiding at a summary trial may act on its own initiative or on application of the person found guilty made in accordance with regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 249; 1998, c. 35, s. 82.

249.1 Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.

1998, c. 35, s. 82.

249.11 (1) Any finding of guilty made by a service tribunal may be quashed by a review authority.

(2) Where no other finding of guilty remains after a finding of guilty has been quashed under subsection (1), the whole of the sentence ceases to have force and effect and the person who had been found guilty may be tried as if no previous trial had been held.

(3) Where another finding of guilty remains after a finding of guilty has been quashed under subsection (1) and any punishment included in the sentence is in excess of the punishment authorized in respect of any remaining finding of guilty or is, in the opinion of the review authority that made the decision to quash, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

249.12 (1) A review authority may substitute a new finding for any finding of guilty that is made by a service tribunal and that is illegal or cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears that the service tribunal was satisfied of the facts establishing the offence specified or involved in the new finding.

(2) A review authority may substitute for a finding of guilty made by a service tribunal a new finding of guilty of an offence, other than that of which the service tribunal found the offender guilty, if it appears that the facts proved the offender guilty of the other offence and the service tribunal could have found the offender guilty of the other offence on the charge under section 133, 134 or 136 or on any alternative charge that was laid.

(3) Where a new finding has been substituted under this section for a finding made by a service tribunal and any punishment included in the sentence passed by the service tribunal is in excess of the punishment authorized in respect of the new finding or is, in the opinion of the review authority that substituted the new finding, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

249.13 A review authority may substitute for a sentence passed by a service tribunal in which is included an illegal punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

249.14 A review authority may mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal.

1998, c. 35, s. 82.

249.15 The following conditions apply where a new punishment under this Division replaces, by way of substitution or commutation, a punishment imposed by a service tribunal:

(a) the new punishment may not be a punishment that could not legally have been imposed on the charges of which the offender was found guilty and in respect of which the findings have not been quashed or set aside by way of substitution;

(b) the new punishment may not be higher in the scale of punishments than the punishment imposed in the first instance and, if the sentence passed included a punishment of incarceration, the new punishment may not involve a period of incarceration exceeding the period of incarceration included in that sentence;

(c) where the new punishment is detention and the punishment that it replaces is imprisonment, the term of the detention after the date of alteration may in no case exceed the term of the imprisonment remaining to be served and, in any event, may not exceed ninety days; and

(d) where the offence of which a person has been found guilty is an offence for which the punishment of imprisonment for life is mandatory under section 73, 74, 75 or 76, for which the punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is mandatory under section 92 or to which paragraph 130(2)(a) applies, the punishment may, subject to this section, be altered to any one or more of the punishments lower in the scale of punishments than the punishment provided for in that section or any other enactment prescribing the offence.

1998, c. 35, s. 82.

249.16 (1) Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.

(2) The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.

(3) The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion and the Court shall furnish its opinion accordingly.

(4) If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.

1998, c. 35, s. 82.

249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council.

1998, c. 35, s. 82.

249.18 (1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Defence Counsel Services.

(2) The Director of Defence Counsel Services holds office during good behaviour for a term not exceeding four years.

(3) The Director of Defence Counsel Services is eligible to be re-appointed on the expiration of a first or subsequent term of office.

1998, c. 35, s. 82.

249.19 The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.

1998, c. 35, s. 82.

249.2 (1) The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.

(2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services.

(3) The Director of Defence Counsel Services shall ensure that the general instructions and guidelines are available to the public.

1998, c. 35, s. 82.

249.21 (1) The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.

(2) The Director of Defence Counsel Services may engage on a temporary basis the services of counsel to assist the Director of Defence Counsel Services.

(3) The Director of Defence Counsel Services may, subject to any applicable Treasury Board directives, establish the terms and conditions of engagement and fix the remuneration and expenses of counsel engaged under subsection (2).

1998, c. 35, s. 82.

249.22 (1) Every person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.

(2) Every person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.

(3) A person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue.

1998, c. 35, s. 82.

249.23 Where an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused person

(a) fails to appear as summoned or ordered; or

(b) having appeared before the court martial, fails to attend before the court martial as required.

1998, c. 35, s. 82.

249.24 Where a new punishment, by reason of substitution or commutation, replaces a punishment imposed by a service tribunal, the new punishment has force and effect as if it had been imposed by the service tribunal in the first instance and the provisions of the Code of Service Discipline apply accordingly but, where the new punishment involves incarceration, the term of the new punishment shall be reckoned from the date of substitution or commutation, as the case may be.

1998, c. 35, s. 82.

249.25 (1) Where a person is convicted of an offence under the Code of Service Discipline, the service tribunal shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

(2) Where an accused person is tried for an offence but is not convicted and it appears to the service tribunal that an offence has been committed, the service tribunal may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

(3) An order shall not be made in respect of

(a) property to which an innocent purchaser for value has acquired lawful title;

(b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or

(c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.

(4) An order made under this section shall be executed by the persons by whom the process of the service tribunal is ordinarily executed.

1998, c. 35, s. 82.

249.26 Every reference in this Part to the rank of an officer or non-commissioned member includes a person who holds any equivalent relative rank, whether that person is attached, seconded or on loan to the Canadian Forces.

1998, c. 35, s. 82.