QR&Os: Volume II - Chapter 118 Release from Detention or Imprisonment Pending Appeal from Court Martial

Official Format

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Amendment List:

  • 1 June 2014 – amended article: 118.15

History:

Section 1 – Application within 24 Hours for Release Pending Appeal

118.01 – DEFINITION

In this chapter, "release pending appeal" means release from detention or imprisonment

  1. until the expiration of the time to appeal referred to in subsections 232(3) and (4) of the National Defence Act; and
  2. if there is an appeal in respect of any of the matters specified in section 230 of the National Defence Act, until the determination of that appeal.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.02 – RIGHT TO APPLY TO SENTENCING COURT MARTIAL FOR RELEASE PENDING APPEAL

Section 248.1 of the National Defence Act provides in part:

"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 … 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."

(C) [1 September 1999]

118.03 – APPLICATION TO COURT MARTIAL FOR HEARING FOR RELEASE PENDING APPEAL

(1) A person, who is sentenced to detention or imprisonment and who applies for release pending appeal to the court martial that imposed the sentence shall deliver, within 24 hours after being sentenced, the application to the judge presiding at the court martial or the person having custody of him.

(2) The application shall be in writing, shall be signed by the applicant and should be in the following form:

APPLICATION FOR RELEASE PENDING APPEAL

TO: (service number, rank and name of the judge presiding at the court martial or person holding applicant in custody)

I apply to the court martial for a direction that I be released from (detention or imprisonment, as the case may be)

  1. until the expiration of the time to appeal referred to in subsections 232(3) and (4) of the National Defence Act; and
  2. if there is an appeal in respect of any of the matters specified in section 230 of the National Defence Act, until the determination of that appeal.

DATED at (unit), (place) , this (day) day of (month), (year).

(signature of applicant)

(service number and rank (if applicable) and name)

Received at _____ hours, on (date).

(signature of judge presiding at the court martial or person holding applicant in custody)

(3) A person other than the judge presiding at the applicant's court martial who receives an application pursuant to paragraph (1) shall record on the application the time and date on which it was received and cause the application to be delivered without delay to the judge.

(4) Upon receipt of an Application for Release Pending Appeal, the judge shall

  1. determine, in consultation with the prosecutor and the applicant or the applicant's legal counsel, the earliest practical time and the place to hear the application and cause them, and such other persons as the judge may direct, to be notified of that time and place; and
  2. cause the application to be heard in accordance with article 118.04 (Procedure at Hearing).

(G) [P.C. 1999-1305 effective 1 September 1999]

118.04 – PROCEDURE AT HEARING

(1) In this article, "applicant" means a person applying for release pending appeal and includes, unless the context otherwise requires, the person's legal counsel.

(2) At the beginning of the hearing

  1. unless the hearing is to be held in camera (see article 112.10 – Who May be Present at a Court Martial), members of the public shall be admitted; and
  2. the prosecutor and the applicant shall take their places.

(3) The applicant, followed by the prosecutor, may make any statement that is pertinent to the application, and witnesses may be called first by the applicant and then by the prosecutor, or by the court at any time if it desires to hear any further evidence.

(4) Following any action under paragraph (3), the applicant and then the prosecutor may address the court, and the applicant shall have the right to reply to any address made by the prosecutor.

(5) The court shall determine

  1. whether or not the applicant has established, on a balance of probabilities, the existence of the conditions necessary for the applicant's release (see article 118.07 – Conditions for Release Pending Appeal Upon Application to Court Martial); and
  2. where the conditions necessary for the applicant's release are established, the direction of the court as to the conditions to be included in the undertaking (see article 118.08 – Direction and Undertaking if Application to Court Martial Granted).

(6) The court shall announce its decision in accordance with paragraph (7) or (8) and comply with article 118.05 (Action on Termination of Proceedings).

(7) If the court directs that the applicant be released, it shall

  1. announce that the applicant is to be released upon giving the undertaking required by section 248.5 of the National Defence Act (see article 118.08); and
  2. prepare and deliver to the person having custody of the applicant a Form of Direction and Undertaking (see article 118.08).

(8) If the court does not direct that the applicant be released, it shall announce that the application is denied.

(9) A record of the hearing and the decision in respect of the application shall be included in the minutes of the proceedings.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.05 – ACTION ON TERMINATION OF PROCEEDINGS

When proceedings have been terminated, the Director of Military Prosecutions shall cause the referral authority (see article 109.02 – Referral Authorities) and the applicant's commanding officer to be informed:

  1. of the outcome of the application for release pending appeal; and
  2. if the applicant was released pending appeal, of any conditions that are to be included in the undertaking.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.06 – PROCEDURE GENERALLY – APPLICATION OF NATIONAL DEFENCE ACT AND REGULATIONS

Except as otherwise specifically provided in this section, all provisions of the National Defence Act and of the regulations that apply to the trial of an accused person by court martial shall, where the context permits, apply with any necessary changes to an application by that person for release pending appeal pursuant to this section.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.07 – CONDITIONS FOR RELEASE PENDING APPEAL UPON APPLICATION TO COURT MARTIAL

Section 248.3 of the National Defence Act provides in part:

"248.3 On hearing an application to be released from detention or imprisonment, the court martial, … may direct that the person making the application be released as provided for in sections 248.1 and 248.2 if the person establishes

  1. in the case of an application under section 248.1,
    1. that the person intends to appeal,
    2. if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,
    3. that the person will surrender himself into custody when directed to do so, and
    4. that the person's detention or imprisonment is not necessary in the interest of the public or the Canadian Forces; ..."

(C) [1 September 1999]

118.08 – DIRECTION AND UNDERTAKING IF APPLICATION TO COURT MARTIAL GRANTED

(1) Section 248.5 of the National Defence Act provides in part:

"248.5 If an application for release is granted, the court martial, … may direct that the person making the application be released on giving an undertaking to

  1. remain under military authority;
  2. surrender himself or herself into custody when directed to do so; and
  3. comply with any other reasonable conditions that are stipulated."

(2) The direction and undertaking referred to in paragraph (1) shall be in the following form:

FORM OF DIRECTION AND UNDERTAKING

PART I

DIRECTION

It is directed that (service number and rank (if applicable) and full name), be released from (detention or imprisonment, as the case may be) upon signing the undertaking in Part 2 and it is further directed that this form be presented to that person without delay.

(signature of military judge)

(type of court martial) Court Martial

PART 2

UNDERTAKING GIVEN ON RELEASE PENDING APPEAL

I, (service number and rank (if applicable) and full name of applicant) undertake, as a condition of my release pending appeal, to

  1. remain under military authority;
  2. surrender myself into custody when directed to do so; and
  3. (such other reasonable conditions as the court martial may stipulate).

DATED at (unit), (place) , this (day) day of (month), (year).

(signature of applicant)

(3) Section 248.6 of the National Defence Act provides:

"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."

(4) Where the person having custody of the applicant receives a duly completed Form of Direction and Undertaking, that person shall without delay cause it to be delivered to the judge presiding at the applicant's court martial and copies of it to be delivered to the prosecutor, the applicant and the applicant's commanding officer.

(5) The Form of Direction and Undertaking must be included in the minutes of the proceedings of the court martial.

(G) [P.C. 1999-1305 effective 1 September 1999]


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Section 2 – Application for Release upon Entry of Appeal

118.09 – RIGHT TO APPLY TO A JUDGE OF THE COURT MARTIAL APPEAL COURT

Section 248.2 of the National Defence Act provides in part:

"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 … for a direction that the person be released from detention or imprisonment until the determination of the appeal."

(C) [1 September 1999]

NOTE

The procedure for an application to a judge of the Court Martial Appeal Court for release pending appeal is set out in the "Court Martial Appeal Rules" (see QR&O Volume IV, Appendix 1.2).

(C) [1 September 1999]

118.10 – CONDITIONS OF RELEASE UPON ENTRY OF APPEAL

Section 248.3 of the National Defence Act provides in part:

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

  1. in the case of an application under section 248.2,
    1. that the appeal is not frivolous,
    2. if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,
    3. that the person will surrender himself into custody when directed to do so, and
    4. that the person's detention or imprisonment is not necessary in the interest of the public or the Canadian Forces."

(C) [1 September 1999]

118.11 – UNDERTAKING IF APPLICATION TO COURT MARTIAL APPEAL COURT GRANTED

Section 248.5 of the National Defence Act provides in part:

"248.5 If an application for release is granted, … the judge of the Court Martial Appeal Court, … may direct that the person making the application be released on giving an undertaking to

  1. remain under military authority;
  2. surrender himself or herself into custody when directed to do so; and
  3. comply with any other reasonable conditions that are stipulated."

(C) [1 September 1999]

118.12 – RELEASE UPON GIVING UNDERTAKING

Section 248.6 of the National Defence Act provides:

"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."

(C) [1 September 1999]

118.13 – DISPOSITION OF UNDERTAKING

(1) An undertaking given pursuant to an application under this section shall be delivered to the person having custody of the applicant.

(2) A person receiving an undertaking pursuant to paragraph (1) shall cause it to be delivered without delay to the Registrar of the Court Martial Appeal Court and a copy of it to be delivered to the Judge Advocate General, the applicant and the applicant's commanding officer.

(M) [1 September 1999]

[118.14: repealed 1 September 1999]


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Section 3 – Miscellaneous Provisions Relating to Return to Duty and Review of Conditions of Undertaking

118.15 – RETURN TO DUTY

(1) Section 248.7 of the National Defence Act provides:

"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."

(2) An officer authorized to relieve an officer or non-commissioned member from the performance of military duty shall consider whether a member who is released from imprisonment pursuant to Division 10 (Release Pending Appeal) of the National Defence Act should be relieved from the performance of military duty under article 19.75 (Relief from Performance of Military Duty) or article 101.09 (Relief from Performance of Military Duty – Pre and Post Trial).

(C) [9 January 2001 – (2); 1 June 2014 – (2)]

118.16 – REVIEW OF CONDITIONS OF UNDERTAKING

Section 248.8 of the National Defence Act provides:

"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

  1. confirm the conditions;
  2. vary the conditions; or
  3. 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."

(C)


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Section 4 – Proceedings to Cancel Direction for Release for Breach of Undertaking

118.17 – DEFINITION

In this section "respondent" means a person released pending appeal who has been notified that a court martial has been directed to hear an application to cancel the direction that authorized the release.

(M)

118.18 – REQUIREMENT NOT TO BREACH UNDERTAKING GIVEN UPON RELEASE

A person released pending appeal shall not breach an undertaking given in accordance with this chapter.

(M)

118.19 – APPLICATION TO CANCEL DIRECTION FOR RELEASE IF UNDERTAKING BREACHED

Section 248.81 of the National Defence Act provides:

"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

  1. cancel the direction that authorized the person to be released and direct that the person be detained in custody; or
  2. 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

  1. where the undertaking was given in respect of a direction made pursuant to an application under section 248.1, a military judge; or
  2. 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.

(1 September 1999)

(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. (1 September 1999)

(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."

(C) [1 September 1999]

NOTE

The unit legal officer should be contacted where a unit considers that a person who has been released pending appeal by a court martial has breached or is likely to breach an undertaking given on release.

(C) [1 September 1999]

118.20 – NOTIFICATION TO PERSON RELEASED PENDING APPEAL

(1) At least 24 hours prior to making an application to cancel a direction for release, the person in respect of whom the application is being made and that person's commanding officer shall be given notice of the time and place of the hearing of the application.

(2) Notice pursuant to paragraph (1) shall include:

  1. sufficient detail of the nature of the application to enable the person in respect of whom the application is being made to respond to it without adjournment;
  2. any supporting witnesses to be called; and
  3. an estimate of the length of time required to present the application.

(M) [1 September 1999]

118.21 – PROCEDURE AT HEARING OF APPLICATION FOR CANCELLATION OF DIRECTION FOR RELEASE PENDING APPEAL

(1) In this article,

"applicant" (demandeur)
means legal counsel for the Canadian Forces;
"respondent" (défendeur)
includes, unless the context otherwise requires, the respondent's legal counsel.

(2) At the beginning of the hearing

  1. unless the hearing is to be held in camera, members of the public shall be admitted; and
  2. the applicant and the respondent shall take their places.

(3) The military judge presiding at the hearing shall identify himself and ask whether the respondent objects to the application being heard by him or her, and where there is an objection, the procedure described in article 112.14 (Objections to the Constitution of the Court Martial) shall be followed with any necessary changes.

(4) After any objection to the judge has been disposed of, the judge shall:

  1. take the oath prescribed in article 112.16 (Oath to be Taken by Judge Presiding at Court Martial);
  2. swear the court reporter (see article 112.18 – Oath to be Taken by Court Reporter); and
  3. if it is proposed to have an interpreter, and if there is no objection to the interpreter (see article 112.15 – Objection to Interpreter), swear the interpreter (see article 112.19 – Oath to be Taken by Interpreter).

(5) The applicant, followed by the respondent, may make any statement that is pertinent to the application, and witnesses may be called first by the applicant and then by the respondent, or by the judge at any time if the judge desires to hear any further evidence.

(6) Following any action under paragraph (5), the applicant and then the respondent may address the judge, and the applicant shall have the right to reply to any address made by the respondent.

(7) If the applicant has not established that the respondent has breached or is likely to breach his undertaking, the judge shall remind the respondent that he remains bound by his previous undertaking.

(8) If the applicant has established that the respondent has breached or is likely to breach his undertaking and the judge does not decide to direct that the respondent remain at liberty, the judge shall:

  1. announce that the direction that authorized the respondent to be released is cancelled; and
  2. direct that the respondent be detained in custody.

(9) If the applicant has established that the respondent has breached or is likely to breach his undertaking and the judge decides to direct that the respondent may remain at liberty on giving a new undertaking, the judge shall:

  1. announce that the respondent is to remain at liberty upon giving the undertakings required by paragraphs (a) and (b) of section 248.5 of the National Defence Act and any other reasonable conditions imposed that are to be included in that undertaking (see article 118.08 – Direction and Undertaking if Application to Court Martial Granted); and
  2. have the respondent sign a new undertaking in the form of Part 2 of the Form of Direction and Undertaking prescribed by article 118.08.

(10) Where the respondent does not sign the new undertaking, the judge shall cancel the original direction that authorized the respondent's release and direct that the respondent be detained in custody until the respondent signs the new undertaking or completes the sentence imposed.

(11) The judge shall terminate the hearing.

(12) A record of the hearing and the decision in respect of the application must be included in the minutes of the proceedings.

(13) The Director of Military Prosecutions shall cause the referral authority (see article 109.02 – Referral Authorities) and the respondent's commanding officer to be informed of the outcome of the application.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.22 – PROCEDURE GENERALLY – APPLICATION OF NATIONAL DEFENCE ACT AND REGULATIONS

Except as otherwise specifically provided in this section, all provisions of the National Defence Act and of the regulations that apply to the trial of a person by a court martial shall, where the context permits, apply with any necessary changes to an application under this section.

(G) [P.C. 1999-1305 effective 1 September 1999]

118.23 – RIGHT TO REPRESENTATION BY LEGAL COUNSEL

A respondent has the right to be represented by legal counsel appointed by the Director of Defence Counsel Services or by legal counsel retained at his or her own expense.

(G) [P.C. 1999-1305 effective 1 September 1999]

[118.24: repealed by P.C. 1999-1305 effective 1 September 1999]

[118.25: repealed 1 September 1999]

[118.26 to 118.28: repealed by P.C. 1999-1305 effective 1 September 1999]

[118.29: repealed 1 September 1999]


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Section 5 – Appeal from Application for Release and from Order Cancelling Direction for Release

118.30 – APPEAL TO THE COURT MARTIAL APPEAL COURT

Section 248.9 of the National Defence Act provides:

"248.9 (1) The following persons, namely,

  1. a person whose application to be released from detention or imprisonment pursuant to this Division is refused; and
  2. 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."

(C) [1 September 1999]

NOTE

The provisions governing appeals to the Court Martial Appeal Court under this article are contained in QR&O Volume IV, Appendix 1.2.

(C)


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Section 6 – Miscellaneous

118.31 – SURRENDER INTO CUSTODY

Section 248.91 of the National Defence Act provides:

"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."

(C) [1 September 1999]

[118.32 to 118.99 inclusive: not allocated]