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

246. to 248. [Repealed, 1998, c. 35, s. 73]

Marginal note:Release by court martial

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.

Marginal note:Release by judge of the CMAC

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.

Marginal note:Court may direct release

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.

Marginal note:Right of representative of Canadian Forces

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.