QR&Os: Volume II - Chapter 117 New Trials

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Amendment List:

  • 18 July 2008 Amended Article: 117.01

History:

117.01 – NEW TRIAL DIRECTED BY COURT MARTIAL APPEAL COURT

Subsection 238(1) of the National Defence Act provides in part:

"238. (1) On the hearing of an appeal respecting the legality of a finding of guilty on any charge, the Court Martial Appeal Court, if it allows the appeal, may set aside the finding and ...

  1. direct a new trial by court martial on the charge." (4 July 2008)

(C) (4 July 2008)

117.02 – PETITION FOR NEW TRIAL ON NEW EVIDENCE

(1) Section 249.16 of the National Defence Act provides:

"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."

(2) A petition made under paragraph (1) shall be delivered by the petitioner to the petitioner's commanding officer or to any person by whom the petitioner is held in custody.

(3) The commanding officer or other person to whom a petition is delivered shall forward it without delay to the Minister.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

117.03 – PROCEDURE AT NEW TRIAL

Where a new trial is held and the trial continues after a finding of guilty, the prosecutor shall, after complying with paragraphs (1) to (5) of article 112.51 (Sentencing Procedure), inform the court martial as to the sentence passed on the accused by the previous court martial.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTE

If an offender has been incarcerated under the sentence of the first court, the judge sentencing the offender after a new trial should take into consideration the fitness of the original sentence and the amount of time served when determining an appropriate sentence at a new trial.

(C) (1 September 1999)

(117.04: REPEALED 1 SEPTEMBER 1999)

(117.05: REPEALED 1 SEPTEMBER 1999)

(117.06: REPEALED BY P.C. 1999-1305 OF 8 JULY 1999 EFFECTIVE 1 SEPTEMBER 1999)

(117.07: REPEALED 1 SEPTEMBER 1999)

(117.08 TO 117.99 INCLUSIVE: NOT ALLOCATED)