National Defence Act (R.S.C., 1985, c. N-5)

Marginal note:Breach of undertaking

• 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.

• Marginal note:Determination of authority

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  • (c) [Repealed, 1998, c. 35, s. 79]

• Marginal note:Exception

  (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.

• Marginal note:Right to make representations

  (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.

Marginal note:Rules

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.

Marginal note:Appeal to CMAC

• 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.

• Marginal note:Idem

  (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.

• Marginal note:Grounds may be considered

  (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.

• Marginal note:Application of provisions

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

Marginal note:Surrender into custody

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.

DIVISION 11Petition for New Trial

Marginal note:Right to petition on new evidence

• 249 (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.

• Marginal note:Reference to CMAC for determination

  (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.

• Marginal note:Reference to CMAC for opinion

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

• Marginal note:New trial

  (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.

Marginal note:Royal prerogative

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

249.11 [Repealed, 2019, c. 15, s. 41]

249.12 [Repealed, 2019, c. 15, s. 41]

249.13 [Repealed, 2019, c. 15, s. 41]

249.14 [Repealed, 2019, c. 15, s. 41]

249.15 [Repealed, 2019, c. 15, s. 41]

249.16 [Repealed, 2019, c. 15, s. 41]

DIVISION 12Miscellaneous Provisions

Right to be Represented

Marginal note:Right to be represented

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.

Defence Counsel Services

Marginal note:Appointment

• 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.

• Marginal note:Tenure of office

  (2) The Director of Defence Counsel Services holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

• Marginal note:Powers of inquiry committee

  (2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Re-appointment

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

Marginal note:Duties and functions

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.

Marginal note:Relationship to Judge Advocate General

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

• Marginal note:General instructions

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

• Marginal note:Instructions must be public

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

Marginal note:Barristers and advocates to assist

• 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.

• Marginal note:Counsel

  (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.

• Marginal note:Remuneration

  (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).

Witnesses at Courts Martial and before Commissioners

Marginal note:Summonses to witnesses

• 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.

• Marginal note:Summonses to witnesses

  (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.

• Marginal note:Production of documents

  (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.

Warrant for Arrest on Non-Appearance of Accused

Marginal note:Non-appearance of accused

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.

Effect of New Punishment

Marginal note:Force and effect

249.24 If a new punishment is substituted for a punishment imposed by a court martial, the new punishment has force and effect as if it had been imposed by the court martial in the first instance and the provisions of the Code of Service Discipline apply accordingly. However, if the new punishment involves incarceration, the term of the new punishment is to be reckoned from the date of substitution.

Restitution of Property

Marginal note:Restitution of property

• 249.25 (1) A court martial that finds a person guilty of an offence shall order that any property obtained by the commission of the offence be restored to the person apparently entitled to it if, at the time of the trial, the property is before the court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

• Marginal note:Restitution where no conviction, but offence committed

  (2) Where an accused person is tried for an offence but is not convicted and it appears to the court martial that an offence has been committed, the court martial 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 court martial or has been detained so that it can be immediately restored under the order to the person so entitled.

• Marginal note:Exceptions

  (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.

• Marginal note:Execution of order for restitution

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

Reference to Ranks

Marginal note:Reference to ranks

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.

Criminal Record

Marginal note:Convictions for certain offences

• 249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

  • (a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:

    • (i) a severe reprimand,

    • (ii) a reprimand,

    • (iii) a fine not exceeding basic pay for one month, or

    • (iv) a minor punishment;

  • (b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

• Marginal note:Criminal Records Act

  (2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.