DIRECTIVE TO COURT MARTIAL APPEAL COURT JUDGES
Filing of Judgment and Reasons
Questions have been raised as to the documents to be issued after a case is heard, and the timing for such issuance.
I draw these matters to your attention because I appreciate that judges of this Court work principally in other courts and may be accustomed to different practices. I believe that in this Court we should follow a uniform practice along the following lines and I request your cooperation.
I would draw your attention to Rule 35 which provides as follows:
35.(1) Every judgment and order shall be committed to writing, signed by the presiding judge, and filed.
I would also draw your attention to the manual of the CMAC as revised and issued on May 4, 2001. At page B-7 is my summary of requirements as to format and delivery of judgment and reasons and at pages B-9 to B-21 is a memorandum from the Judicial Administrator with sample formats for the guidance of judicial assistants.
(2) When reasons for judgment are given in open court or when reasons for an order are given, they shall be committed to writing, signed by the judge who gave them and filed.
(3) When a judge gives reasons that are not the reasons of the Court, he shall commit them to writing, sign and file them.
(4) When there is a dissent to the Court's decision, written reasons shall be given by both the majority and the dissenting judges.
(4.1) Where a dissent to the Court's decision is based in whole or in part on a question of law, the grounds for the dissent shall be specified in the judgment issued by the Court.
(5) When a judgment is reserved, written reasons for judgment shall be given and, unless subsection (4) applies, all the judges shall indicate, in writing, their concurrence in whole or in part or in the result by an appropriate endorsement on the reasons or by separate reasons.
(6) A copy of every document filed under this Rule shall be sent without delay to each party by the Registry.
In my summary at B-7 I summarize the requirements as follows:
1. Where judgment is reserved, reasons must be delivered in writing signed by the author and concurred in by "I agree" and the signature of the judge or judges in agreement. Any dissenting reasons, or reasons concurring only in the result, must also be put in writing and signed by their author. (See Sample 1).
It is thus the procedure of this Court to file two documents where there are both a judgment and reasons. As for the timing requirements the fundamental point to keep in mind is that we must not impede any possible appeals to the Supreme Court of Canada from our decisions. By section 58 of the Supreme Court Act the appellant must file and serve an application for leave to appeal within sixty days after the date of the judgment appealed from, or file a notice of appeal within thirty days after judgment where leave is not required. It is obvious that a would-be appellant cannot properly assess the possibility of an appeal without having the reasons for the judgment to be appealed from, where reasons exist, and thus reasons ought to be filed at the same time as, or shortly after, the judgment is issued.
2. Where reasons are delivered from the bench, they shall be placed in writing, signed and filed. Only the author needs to sign them. If there are dissenting reasons, or different reasons concurring only in the result, these must also be put in writing and signed by their author. (See Sample 2).
3. Judgments need only be signed by the presiding judge. Where delivered from the bench they should be signed and filed forthwith. Where there are dissenting reasons on a point of law the grounds in law of the dissent should also be stated in the formal judgment. (See Samples 3 and 4).
The practical effect of this is that judgment should not be issued from the bench unless reasons are also delivered and put in written form within two or three days and signed by the judge who delivered reasons from the bench. This of course does not apply where no reasons are to be given. Otherwise the matter should be reserved, and the judgment signed by the presiding judge should be filed at the same time as the reasons are issued, signed by the author with indications by their signatures of the concurrence or dissent of the other two judges.