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DIVISION 11 |
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REVIEW |
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Review Authorities
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| Governor in
Council
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249. (1) The review authority in respect of
findings of guilty made and punishments
imposed by courts martial is the Governor in
Council.
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| Application
necessary
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(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.
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| Chief of the
Defence Staff
and other
military
authorities
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(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.
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| When
authorities
may act
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(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.
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| Royal
prerogative
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249.1 Nothing in this Division in any
manner limits or affects Her Majesty's royal
prerogative of mercy.
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Quashing of Findings
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| Authority to
quash
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249.11 (1) Any finding of guilty made by a
service tribunal may be quashed by a review
authority.
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| Effect of
complete
quashing
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(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.
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| Effect of
partial
quashing
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(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.
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Substitution of Findings
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| Substitution
of illegal and
unsubstan- tiated findings
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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 .
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| Substitution
of finding in
relation to
other offence
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(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 .
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| Effect on
sentence
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(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.
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Substitution of Punishments
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| Authority to
substitute
punishment
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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.
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Mitigation, Commutation and Remission of
Punishments
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| Authority to
mitigate,
commute and
remit
punishments
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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.
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Conditions Applicable to New Punishments
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| Conditions
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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:
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Petition for New Trial
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| Right to
petition on
new evidence
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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.
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| Reference to
CMAC for
determina- tion
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(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.
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| Reference to
CMAC for
opinion
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(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.
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| New trial
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(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.
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DIVISION 12 |
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MISCELLANEOUS PROVISIONS |
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Right to be Represented
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| Right to be
represented
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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.
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Defence Counsel Services
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| Appointment
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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.
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| Tenure of
office
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(2) The Director of Defence Counsel
Services holds office during good behaviour
for a term not exceeding four years.
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| Re- appointment
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(3) The Director of Defence Counsel
Services is eligible to be re-appointed on the
expiration of a first or subsequent term of
office.
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| Duties and
functions
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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.
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| Relationship
to Judge
Advocate
General
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249.2 (1) The Director of Defence Counsel
Services acts under the general supervision of
the Judge Advocate General.
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| General
instructions
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(2) The Judge Advocate General may issue
general instructions or guidelines in writing in
respect of defence counsel services.
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| Instructions
must be
public
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(3) The Director of Defence Counsel
Services shall ensure that the general
instructions and guidelines are available to the
public.
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| Barristers and
advocates to
assist
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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.
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| Counsel
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(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.
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| Remunera- tion
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(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).
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Witnesses at Courts Martial and before
Commissioners
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| Summonses to
witnesses
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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.
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| Summonses to
witnesses
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(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.
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| Production of
documents
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(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.
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Warrant for Arrest on Non-Appearance of
Accused
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| Non- appearance of accused
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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
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Effect of New Punishment
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| Force and
effect
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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.
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Restitution of Property
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| Restitution of
property in
case of
conviction
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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.
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| Restitution
where no
conviction,
but offence
committed
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(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.
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| Exceptions
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(3) An order shall not be made in respect of
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| Execution of
order for
restitution
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(4) An order made under this section shall
be executed by the persons by whom the
process of the service tribunal is ordinarily
executed.
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Reference to Ranks
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| Reference to
ranks
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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.
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