Rules of the Court Martial Appeal Court

SHORT TITLE

RULE 1. These Rules may be cited as the Court Martial Appeal Court Rules.

Return to top

INTERPRETATION

RULE 2. In these Rules,

"Act" means the National Defence Act; (Loi)

"Administrator" means the Administrator of the Court and includes the Assistant Administrator; (administrateur)

"appellant" means a person referred to in section 248.9 of the Act on whose behalf a decision or order is appealed from, a person on whose behalf a petition has been referred to the Court under subsection 249.16(2) of the Act or a person on whose behalf a Notice of Appeal is delivered; (appelant)

"applicant" means a person, other than an appellant, on whose behalf an application under Division 3 or 10 of Part III of the Act is filed, or a person on whose behalf a Notice of Motion is filed; (requérant)

"counsel" means a barrister or advocate entitled to practise in the Court; (avocat)

"Court" means the Court Martial Appeal Court of Canada; (Cour)

"Court Martial Administrator" means the person appointed under section 165.18 of the Act; (administrateur de la cour martiale)

"holiday" has the same meaning as in subsection 35(1) of the Interpretation Act; (jour férié)

"Judicial Administrator" means the officer of the Registry so designated pursuant to Rule 39; (administrateur judiciaire)

"Minister" means Minister of National Defence and includes any person instructed to exercise the right of appeal under section 230.1 of the Act; (ministre)

"Notice of Appeal" means the Notice of Appeal required by section 232 of the Act; (avis d'appel)

"Record" means

• (a) the original minutes of the proceedings of the court martial or of the hearing under Division 3 or 10 of Part III of the Act,
• (b) all documents and records relevant to the appeal or application that were attached to the original minutes,
• (c) subject to Rule 6.1, all other records and exhibits filed at the court martial or hearing under Division 3 or 10 of Part III of the Act, and
• (d) all documents and records relevant to any application under Division 3 or 10 of Part III of the Act; (Dossier)

"Registry" means the principal office of the Court in Ottawa and the other offices of the Court at Halifax, Fredericton, Quebec City, Montreal, Toronto, Winnipeg, Calgary, Edmonton and Vancouver, and includes the Administrator, officers, clerks and employees of the Court; (greffe)

"Respondent" means a party to a proceeding other than an appellant or applicant and includes a respondent's counsel of record but does not include an attorney general who files a notice of intention to intervene pursuant to subsection (3) of Rule 11.1. (intimé)

"Statement of Appeal" [Repealed.]

Return to top

General

RULE 3. These Rules are intended to render effective the substantive law and to ensure that it is carried out; they shall be liberally construed to secure the just, expeditious and economical resolution of each proceeding.

Return to top

The Judges

RULE 4. The Chief Justice has rank and precedence before all the other judges who have precedence among themselves according to the dates upon which they respectively became judges of the Court.

Return to top

Schedule of Hearings

RULE 4.1 (1) The Chief Justice shall designate the judge or judges to hear an appeal or other proceeding and shall, by order, fix the time and place of the hearing.

(2) The Registry shall send a copy of the order to the Court Martial Administrator and the parties.

(3) A judge, prior to a hearing, or the Court, at the hearing, may postpone the hearing if it is considered just in the circumstances. The Registry shall notify the Court Martial Administrator and the parties of the postponement.

Return to top

Form of Documents

RULE 4.2 (1) This Rule applies in respect of a document, other than the Record, the appeal book or a petition referred to in subsection 249.16(2) of the Act, that is prepared for use in a proceeding.

(2) The document shall be printed, typewritten or reproduced legibly, on good quality white or off-white paper measuring 21.5 cm by 28 cm,

• (a) on one side of the paper only, in respect of a document other than a book of authorities;
• (b) in a type not smaller than 10 points;
• (c) with top and bottom margins of not less than 2.5 cm and left and right margins of not less than 3.5 cm; and
• (d) with no more than 30 lines per page, exclusive of headings.

(3) The first page of the document shall have a heading that sets out

• (a) the Court file number;
• (b) the style of cause; and
• (c) the title of the document.

(4) The document shall be dated and contain

• (a) a table of contents, if there are several components to the document; and
• (b) for the purpose of service in Canada, the name, address, telephone number and facsimile number of the counsel filing the document or of the party, where the party is not represented by counsel.

(5) No Memorandum of Fact and Law shall exceed 30 pages in length, and no Memorandum in Reply shall exceed 10 pages in length, exclusive in each case of the list of authorities, unless the Court, if it is considered just in the circumstances, permits otherwise.

(6) All documents filed in the Registry shall be signed by the counsel for the party, or by the party, if the party is not represented by counsel.

Return to top

Commencement of Proceedings

RULE 5. (1) A file shall be opened by the Registry without delay upon receipt by the Registry of the first of the following documents:

• (a) an application for review under section 159.9 of the Act that sets out the date of the direction to be reviewed;
• (b) a Notice of Appeal under section 232 of the Act that sets out the date of the decision appealed from;
• (c) an application for review under section 248.8 of the Act that sets out the date of the undertaking to be reviewed; or
• (d) a Notice of Motion commencing an appeal under section 248.9 of the Act that sets out the date of the decision or order appealed from.

(2) Within 10 days after a document referred to in subsection (1) is filed, the appellant or applicant shall serve a copy of the document on the respondent and the Court Martial Administrator and, within 10 days after serving the document, file proof of service with the Registry.

(3) A respondent who intends to participate in an appeal or review shall, within 15 days after service of the document referred to in subsection (1), serve on the appellant or applicant and the Court Martial Administrator, and file with the Registry,

• (a) a notice of appearance in the form set out in Schedule 1; or
• (b) where the respondent seeks a different disposition of the order appealed from or under review, a notice of cross-appeal in the form set out in Schedule 2.

(4) Where a document referred to in subsection (1) is filed in respect of a decision that is already the subject of an appeal or application, that document is deemed to be the notice required by subsection (3) and shall be placed on the file of the first proceeding.

(5) All proceedings before the Court under Divisions 3, 9, 10 and 11 of Part III of the Act arising out of or relating to a decision of a court martial, or a direction of a military judge, in respect of the same charge or charges against a person shall be placed on the file opened under subsection (1).

(6) [Repealed.]

Return to top

Obligations of the Court Martial Administrator

RULE 6. (1) Within 30 days after being served with a Notice of Appeal under section 232 of the Act, the Court Martial Administrator shall cause a Memorandum of Particulars, prepared in accordance with Schedule 3, to be served on the parties and filed with the Registry.

(2) Subject to subsections (3), (4) and 6.1(1), and within 90 days after being served with a document referred to in subsection 5(1), or the documents in respect of an application for a new trial that are referred to in subsection 13.1(3), the Court Martial Administrator shall cause the Record to be forwarded to the Registry.

(3) On the written request of the Court Martial Administrator made before the expiration of the time within which the Record must be forwarded, the Court may extend the time for doing so if it is considered just in the circumstances.

(4) The Court Martial Administrator shall not forward to the Registry any portion of the Record that the parties to the proceedings agree in writing is not relevant to any issue in a proceeding.

(5) The Court Martial Administrator shall, at the same time as the Court Martial Administrator causes the Record to be forwarded to the Registry, file with the Registry five copies of the appeal book, prepared and certified in accordance with Schedule 4, and serve a copy of it on the parties and file proof of service with the Registry within 10 days after serving the appeal book.

RULE 6.1. (1) The Court Martial Administrator shall include in the Record and in the appeal book a photograph or a written description of any exhibit entered at the court martial or hearing under Division 3 or 10 of Part III of the Act that is not a document or that is a document that is impracticable to be forwarded to the Registry with the Record.

(2) The Court Martial Administrator shall cause every exhibit referred to in subsection (1) to be produced at the hearing, unless excused from doing so by agreement of the parties or by an order that is applied for by a party at least 15 days before the date fixed for the hearing.

Return to top

Appellant's Memorandum of Fact and Law

RULE 7.(1) Within 30 days after being served with the appeal book, the appellant shall serve a copy of the appellant's Memorandum of Fact and Law on the respondent and file five copies of it with the Registry.

(2) The appellant's Memorandum of Fact and Law shall contain

• (a) a concise statement of the facts of the case
• (b) the arguments the appellant proposes to make to the Court;
• (c) appropriate references to the appeal book; and

(d) a list of the authorities, statutes and regulations on which the appellant intends to rely in argument, together with copies of the pertinent portions thereof.

(3) The appellant may, in the Memorandum of Fact and Law, give notice of intention to

• (a) argue grounds of appeal not contained in the Notice of Appeal; and
• (b) abandon any grounds of appeal contained in the Notice of Appeal.

(4) Any new grounds the appellant proposes to argue shall be clearly identified as such and shall be set out in the Memorandum of Fact and Law.

(5) [Repealed.]

Return to top

Quashing an Appeal

RULE 8.(1) A respondent may, within 15 days after being served with the appellant's Memorandum of Fact and Law, apply for an order quashing the appeal on the grounds that no substantial grounds of appeal have been shown.

(2) A judge may at any time order an appellant to show cause why an appeal ought not be quashed on the grounds that no substantial grounds of appeal have been shown.

(3) Where on service of a notice of motion in respect of an order referred to in subsection (1) or on the making of a show cause order to quash referred to in subsection (2), unless a judge orders otherwise, no further proceedings in the appeal shall take place until the issue is disposed of, and the time for taking further proceedings shall be extended accordingly.

Return to top

Respondent's Memorandum of Fact and Law

RULE 9.(1) Within 30 days after being served with the appellant's Memorandum of Fact and Law, the respondent shall serve a copy of the respondent's Memorandum of Fact and Law on the appellant and file five copies of it with the Registry.

(2) The respondent's Memorandum of Fact and Law shall contain

• (a) a statement in respect of the appellant's statement of facts indicating those accepted as correct and those not so accepted and giving a concise statement of any additional facts the respondent considers material to the appeal;
• (b) the arguments the respondent proposes to make to the Court;
• (c) appropriate references to the appeal book; and
• (d) a list of the authorities, statutes and regulations on which the respondent intends to rely in argument, together with copies of the pertinent portions thereof.

Return to top

Memorandum in Reply

RULE 10.(1) Where the respondent has served a notice of cross-appeal and has, in the Memorandum of Fact and Law, advanced arguments in support of varying the decision under appeal, the appellant shall, within 30 days after being served with the respondent's Memorandum of Fact and Law, serve a copy of the appellant's Memorandum in Reply on the respondent in accordance with subsection 9(2), with such modifications as the circumstances require, and file five copies of it with the Registry.

(2) Except as provided by subsection (1), no Memorandum in Reply shall be filed without leave of a judge applied for within 10 days after the date of service of the respondent's Memorandum of Fact and Law.

Request for Hearing

RULE 11.(1) Within 20 days after being served with the respondent's Memorandum of Fact and Law or having served the appellant's Memorandum in Reply, as the case may be, the appellant shall serve and file a requisition for hearing in the form set out in Schedule 5 requesting that a date be set for the hearing of the appeal.

(2) If the appellant does not file a requisition for hearing, the respondent may do so in the manner set out in subsection (1).

(3) [Repealed.]

Return to top

Constitutional Questions

RULE 11.1 (1) Where a question in respect of the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province or of regulations under it is put in issue in an appeal, argument shall not be heard on that question nor shall the question be dealt with by the Court on disposition of the appeal unless subsection (2) has been complied with.

(2) The party who has put a constitutional question in issue in an appeal shall serve notice of it, in the form set out in Schedule 6, on the Attorney General of Canada and on the attorney general of each province, and shall file proof with the Registry of the service of the notice at least 10 days before the date set for the beginning of the hearing of the appeal.

(3) An attorney general who wishes to be heard on a constitutional question that is put in issue in an appeal shall, at least five days before the date set for the commencement of the hearing of the appeal, file with the Registry a notice of intention to intervene.

Return to top

Release from Pre-trial Custody and Release Pending Appeal

RULE 12. (1) All applications to the Court or to a judge of the Court under Division 3 or 10 of Part III of the Act, including appeals under section 248.9 of the Act, shall be made by motion under Rule 24 and shall, subject to subsection (1.1), be dealt with on the personal appearance of the parties.

(1.1) The applicant may request that the application be dealt with on the basis of written representations by the parties without the personal appearance of the parties and must request that it be dealt with in that manner if the order sought is proposed to be made on consent.

(2) Every Notice of Motion filed under this Rule shall be in the form set out in Schedule 7 and shall contain or be accompanied by a Memorandum of Particulars, prepared in accordance with Schedule 3.

• (a) [Repealed.]
• (b) [Repealed.]

(3) In the case of an application for release by a person in pre-trial custody or sentenced to a period of detention or imprisonment, the application shall be supported by the applicant's affidavit stating, in addition to other facts upon which the person may wish to rely, the following:

• (a) the reasons for which the person submits that the application for the review or appeal should succeed;
• (b) his proposed place of residence if, upon release, he is not returned to duty;
• (c) his record of criminal and service offences, including all offences of which he has been convicted by a service tribunal, civil court or court of a foreign state, with the date and place of each conviction and the sentence imposed; and
• (d) a statement of service or criminal charges pending against him, whether in Canada or elsewhere, and the details thereof.

(4) An application which is not accompanied by the documents required by subsections (2) and (3) may be summarily dismissed.

(5) An application referred to in subsection (1) by an applicant in custody and not represented by counsel is deemed to include an application under subsection 27(3) unless the applicant requests that it be dealt with in accordance with subsection (1.1).

RULE 13. (1) An application under Division 3 or 10 of Part III of the Act, including an appeal under section 248.9 of the Act, shall be heard and determined without delay and the Chief Justice may, upon the filing of the Notice of Motion, make an order setting the application down for hearing and directing the manner in which it is to proceed to hearing.

(2) If it is considered just in the circumstances, a judge may direct that subsection 6(2) and Rules 7 to 11 apply, with such modifications as the circumstances require, to a review under section 159.9 or 248.8 of the Act or to an appeal under section 248.9 of the Act and that the time limits set out in those Rules be varied.

Return to top

Petition for New Trial

RULE 13.1 (1) A file shall be opened by the Registry without delay upon receipt by the Registry of a petition for a new trial that is referred to the Court by the Minister under subsection 249.16(2) of the Act.

(2) The Administrator shall inform the appellant without delay that the petition has been referred to the Court.

(3) After being informed that the petition has been referred to the Court, the appellant shall, without delay, file a notice of motion with the Registry in the form set out in Schedule 7, along with a Memorandum of Particulars, prepared in accordance with Schedule 3, and an affidavit that sets out all the facts on which the motion is based that do not appear on the record.

(4) Within 10 days after filing the documents referred to in subsection (3), the appellant shall serve a copy of the documents and the petition on the respondent and on the Court Martial Administrator. Within 10 days after service of the documents, the appellant shall file proof of service of them.

(5) After the appellant has filed proof of service under subsection (4) the procedure to be followed is that set out in Rule 13.

Return to top

Production of Documents and Particulars

RULE 14. (1) Where a party requires a document or record relevant to the appeal or application that has not been forwarded to the Registry and the document or record is in the possession or control of the other party, the party requiring it may serve a notice to produce the document or record on the other party.

(2) Within 10 days after being served with the notice referred to in subsection (1), the party shall deliver the required document or record to the other party or serve a reply on the other party, and file a copy of it with the Registry, setting out the reasons why the document or record cannot or should not be produced.

RULE 15. Where a document or record referred to in subsection (1) of Rule 14 is not delivered, a judge may, on application by the party seeking it, make such order as to its production as seems just.

RULE 16. (1) A judge may, at any time, make an order requiring the appellant or applicant to furnish particulars of any ground of appeal stated in the Notice of Appeal or Notice of Motion filed under Rule 12 or 13.1.

(2) A respondent who requires particulars shall serve a demand on the appellant or applicant and file a copy with the Registry specifying the grounds stated in the notice in respect of which particulars are required, and requesting that, within seven days after the demand is received,

• (a) the particulars be furnished to him or her; and
• (b) a copy of the particulars be filed with the Registry.

(3) Where the appellant or applicant fails to furnish the particulars referred to in subsection (2) or furnishes particulars that, in the opinion of the respondent, are inadequate, the Judge Advocate General may apply to a judge for an order under subsection (1).

Return to top

Time

RULE 17.(1) If it is considered just in the circumstances, the Court may, on motion, extend or abridge a period provided by these Rules or fixed by an order and the motion may be brought before or after the expiration of the period provided by these Rules or fixed by an order.

(2) Despite subsection (1), a party may, without bringing a motion, have a period provided by Rule 5, 7, 8, 9, 10, 14 or 16 extended once, for a period not exceeding one half of the number of days in that period, if the party obtains the written consent of all the parties and files the consent in the Registry before the time provided by the Rule.

(3) No extension may be made on consent of the parties in respect of a period fixed by an order of the Court.

RULE 18. (1) Where the time limit imposed by the Rules or an order is less than six days from or after any event, a holiday shall not be reckoned in the computation of such limited time.

(2) Where the time limit for doing a thing expires or falls on a Saturday or holiday, the thing may be done on the day next following that is not a Saturday or holiday.

Return to top

Representation by Counsel

RULE 19. (1) A party may begin and carry on an appeal or an application in person or by counsel.

(2) Barristers or advocates are officers of the Court and may practise in the Court if they are

• (a) entitled by law to practice as barristers or advocates in any province or territory of Canada; or
• (b) assigned to practice in the Court by the Judge Advocate General.

(3) When a party files any document in the Registry signed on his behalf by counsel, that counsel shall be and remain the party's counsel of record until a change is effected in a manner provided for by this Rule.

(4) A party who is represented by counsel of the party's own choice may, without leave, and by notice filed in the Registry, change that counsel. The notice must be signed by the new counsel and a copy served on the other party, the former counsel and the Court Martial Administrator. The notice is not effective until proof of that service has been filed in the Registry.

(5) Where one counsel of record of a party is appointed by the Director of Defence Counsel Services, the party may apply for an order for leave to change that counsel, provided that notice of the application is given to the Director of Defence Counsel Services, the other party, the counsel of record and the Court Martial Administrator. The party shall serve the order on them and the order shall not take effect until proof of that service has been filed.

(6) Where, for any reason, the counsel of record ceases to represent a party, that counsel may apply for an order declaring that the counsel is no longer counsel of record, provided that notice of the application is given to the parties and, if counsel was appointed by the Director of Defence Counsel Services, the Director of Defence Counsel Services. The counsel shall serve the order on the parties, the Court Martial Administrator and the Director of Defence Counsel Services and the order shall not take effect until proof of that service has been filed.

(7) A party who is no longer represented by counsel of record shall file with the Registry and serve on the other parties and the Court Martial Administrator a notice of the party's address and telephone and facsimile numbers for service in Canada.
Return to top

Appointment of Counsel by the Director of Defence Counsel Services

RULE 20. (1) A party who is not represented by counsel of record may apply to the Chief Justice for approval of the appointment by the Director of Defence Counsel Services of counsel to represent the party.

(2) An application under subsection (1) shall be supported by the party's affidavit deposing to

• (a) the pay, income, salary and allowances he was receiving
  • (i) prior to the decision of the court martial or direction of the military judge that is the subject of the proceeding before the Court, and
  • (ii) at the date of the application;
• (b) his means other than those set out pursuant to paragraph (a);
• (c) his current and probable future assets and liabilities;
• (d) his marital status and number of dependants, if any;
• (e) his eligibility to apply for legal aid administered under the laws of any Canadian jurisdiction and the disposition of any such application if made; and
• (f) any further facts upon which the appellant relies as justification for such approval.

(3) An application under this Rule shall be made by filing the same with the supporting affidavit with the Registry and, upon such filing, the Registry shall make and serve a copy thereof on the Minister.

(4) The Minister may, within 15 days after such service, file and serve a reply to an applicant stating whether or not the application made under this Rule is opposed and, if it is, the reasons for opposition.

(5) The Chief Justice shall approve the appointment of counsel by the Director of Defence Counsel Services where, after considering the affidavit of the applicant and any reply of the Minister, the Chief Justice determines that the facts, including the financial circumstances of the applicant, justify the appointment.

Return to top

Fees and Costs

RULE 21. (1) Where a party other than the Minister is represented by counsel, the Court may direct that all or any of the counsel's fees in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

(2) The Court may direct that all or any of the party's costs in the Court in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

RULE 22. (1) Any taxation pursuant to Rule 21 is subject to review upon application made within 10 days of the date of any such taxation.

(2) An application for review under this Rule shall be dealt with by a judge in the first instance, but either party may, within 10 days of the date the judge's decision is communicated to him, apply for the review of that decision by the Court.

Return to top

Service of Documents

RULE 23. (1) Subject to subsections (4), (5) and (7), service of a document shall be effected

• (a) in the case of service on an appellant or applicant, by personal service, registered mail or by a courier that assures service within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the Notice of Appeal, Notice of Motion commencing the proceeding or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;
• (b) in the case of service on a respondent, by personal service, registered mail or by a courier that assures delivery within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the notice referred to in subsection 5(3) or (4) or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;
• (c) in the case of service on the Court Martial Administrator, or a person acting on the Court Martial Administrator's behalf,
  • (i) by mail or courier provided by Canada Post, addressed to
    
    The Court Martial Administrator
    Office of the Chief Military Judge
    National Defence Headquarters
    Ottawa, Ontario
    K1A 0K2
  • (ii) by personal service or by courier other than Canada Post, addressed to
    
    The Court Martial Administrator
    Office of the Chief Military Judge
    Asticou Centre, Block 1900
    241 boul. de la Cité-des-Jeunes
    Hull, Québec
    J8Y 6L2
  • (iii) in the case of service by the Registry, by facsimile with a cover page that has the information, set out in subparagraphs (4)(c)(i) and (iii) to (vi), provided that the Court Martial Administrator has furnished a standing revocable notice to the Registry of a facsimile number for that purpose;
• (d) in the case of the Director of Defence Counsel Services or the Director's agent:
  • (i) by mail or courier provided by Canada Post, addressed to
    
    The Director of Defence Counsel Services
    Asticou Centre, Block 1900
    National Defence Headquarters
    Ottawa, Ontario
    K1A 0K2
  • (ii) by personal service or by courier provided by other than Canada Post, addressed to
    
    The Director of Defence Counsel Services
    Asticou Centre, Block 1900
    241 boul. de la Cité-des-Jeunes
    Hull, Québec
    J8Y 6L2
  • (iii) by facsimile, in the case of documents served by the Registry, provided that the covering page contains the information required by subparagraphs 4(c)(i) and (iii) to (vi) and that the Director of Defence Counsel Services has given the Registry a facsimile number by permanent and revocable notice;
• (e) in the case of service on the Minister,
  • (i) by personal service on either the Minister or the Minister's deputy or agent, or by registered mail addressed to
    
    The Minister of National Defence
    MGen George R. Pearkes Building
    National Defence Headquarters
    Ottawa, Ontario
    K1A 0K2
  • (ii) in the case of service by the Registry, by facsimile with a cover page that has the information set out in paragraph (4)(c), provided that the Minister has furnished a standing, revocable notice to the Registry of a facsimile number for that purpose;
• (f) in the case of service on the Attorney General of Canada, by facsimile at (613) 941-2279 or by registered mail addressed to
  
  The Attorney General of Canada
  East Memorial Building
  284 Wellington Street
  Ottawa, Ontario
  K1A 0H8
• (g) in the case of service on the attorneys general of the provinces, by facsimile or by registered mail at their facsimile number or address in their respective capital cities.

(2) Service of a document is deemed to have taken place on

• (a) the second day after pick-up of the document by the courier, where the document is served by a courier that assures delivery within two days, excluding Saturdays and holidays; or
• (b) the fifth day after posting the document, where the document is served by registered mail.

(3) When the second or fifth day after the pick-up by the courier or posting of the document falls on a Saturday or holiday, the service is deemed to have taken place on the next day that is not a Saturday or holiday.

(4) Service of a document on a party with a counsel of record may be effected

• (a) by leaving a copy of the document at the counsel's business address;
• (b) by mailing a copy of the document to the counsel's business address;
• (c) by telephone transmission of a facsimile of the document to the counsel, provided that it includes a cover page setting out
  • (i) the name, address and telephone number of the sender,
  • (ii) the name of the counsel to be served,
  • (iii) the date and time of transmission,
  • (iv) the total number of pages, including the cover page, transmitted,
  • (v) the telephone number of the source of the transmission, and
  • (vi) the name, address and telephone number of a person to contact if transmission problems occur; or
• (d) in such other manner as a judge may order.

(5) A party in custody, not represented by counsel, may file and serve a document by delivering a copy of it to a superior officer or any other person by whom the party is held in custody. The person receiving the document shall make four copies of it and endorse the date of receipt on the original and each copy and shall retain one copy, return one copy to the person in custody and without delay serve the original and remaining copies on the Registry. On receipt of the document, the Registry shall file the original, send a copy to the Court Martial Administrator and the other copy to the counsel of record for the Minister, or, if there is no counsel of record, to the Minister.

(6) When a party, in a Notice of Appeal or otherwise, who is not represented by counsel, gives notice of an address for service outside Canada, the Registry shall forthwith refer the matter to the Chief Justice for directions.

(7) Where it appears that it is impractical for any reason to effect prompt service of any document on a party in the manner contemplated in subsection (1), the Chief Justice, on ex parte application or of his own motion, may make an order for substituted service or, where justice requires, dispensing with service and any such order shall specify when service is to be effective or the document deemed to have been served.

(8) Service of a document shall be proven by

• (a) an affidavit of service in the form set out in Schedule 8;
• (b) an acknowledgement of service, endorsed on a copy of the document, that is signed and dated by the party, the party's counsel or a person employed by the counsel; or
• (c) a certificate of service by the counsel who served the document, in the form set out in Schedule 9.

(9) Where service takes place in the Province of Quebec, service may also be proven by a certificate of a bailiff, sheriff or other authorized person in accordance with the Québec Code of Civil Procedure.

Return to top

Filing of Documents

RULE 23.1 (1) Documents shall be filed with the Registry at the following address:

The Administrator
Court Martial Appeal Court of Canada
The Supreme Court Building
Wellington Street
Ottawa, Ontario
K1A 0H9

(2) A document is filed by being

• (a) delivered to the Registry;
• (b) mailed to the Registry; or
• (c) subject to subsection (3), transmitted to the Registry by facsimile.

(3) The following documents may not be filed by facsimile without the consent of the Administrator, which consent may be given where filing by facsimile is required in order to allow a case to proceed expeditiously:

• (a) the Record, appeal book, Memorandum of Fact and Law and Memorandum in Reply; and
• (b) any other document that is longer than 20 pages.

(4) A document that is filed by facsimile shall include a cover page that sets out the following information:

• (a) the name, address and telephone number of the sender;
• (b) the date and time of transmission;
• (c) the total number of pages transmitted, including the cover page;
• (d) the number of the facsimile to which documents may be sent; and
• (e) the name and telephone number of a person to contact in the event of a transmission problem.

(5) A document is not considered to have been filed until it is received by the Registry and dated by the Administrator.

(6) All documents that are required to be served, other than the appeal book and the documents referred to in subsections 5(1) and 23(5), must be filed with proof of service in the form and within the times set out in these Rules.

Return to top

Applications, Motions and Notices

RULE 24. (1) Where any application is authorized to be made to the Court, the Chief Justice, or a judge of the Court, it shall be made by motion.

(2) A motion shall be made by serving and filing a Notice of Motion in the form set out in Schedule 7 and shall be supported by an affidavit that sets out all the facts on which it is based that do not appear on the record.

(3) A party may attach to the Notice of Motion written representations and a request that the motion be heard orally.

(3.1) Any other party may serve on the other parties and file with the Registry a consent to the motion or, if the party opposes the motion, an affidavit and written representations in reply within 15 days after being served with a Notice of Motion. At the same time that the affidavit and written representations in reply are filed, the party may, in the reply or in a separate document, serve and file a request to have the motion heard orally.

(4) Any person making an affidavit that has been filed by a party may be required, on application of another party, to appear before a judge or a registry officer designated by the Chief Justice, to be cross-examined thereon, and a transcript thereof may be filed with the Registry by the cross-examining party.

RULE 25.(1) Subject to subsection (2), every application, other than an application referred to in subsections 12(1) and 13.1(1), shall be disposed of without the personal appearance of the parties, but on the basis of the affidavit and written representations, if any, that are referred to in subsection 24(2), (3) or (3.1), or on the written and signed consent of the parties.

(2) If it is considered just in the circumstances, the Chief Justice on the Chief Justice's own motion or on request made under subsection 24(3) or (3.1), may direct that the application be disposed of on the personal appearance of the parties.

(3) [Repealed.]

(4) [Repealed.]

(5) [Repealed.]

RULE 26. (1) The Chief Justice shall, by order, fix the time, date and place for the oral hearing of every motion to be so heard and shall designate the judge or judges to hear the same.

(2) A party who desires to make representations in writing, without personal appearance, in respect of an application by another party which is to be heard orally, may do so by filing a copy thereof with the Registry and serving a copy on each other party not less than two days before the date fixed for the hearing of the motion.

Return to top

Application by Party Under Custody to Attend Hearing

RULE 27. (1) Subject to subsection (2), a party who is in custody is entitled, if he desires, to be present at the hearing of his appeal.

(2) A party who is in custody and who is represented by counsel is not entitled to be present

• (a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone, or
• (b) at any proceedings that are preliminary to or incidental to the appeal,

unless the Chief Justice gives him leave to be present.

(3) A party who is in custody and desires to be present at the hearing of the appeal, or at any proceedings preliminary or incidental thereto, shall make application for an order under subsection (4).

(4) Where the party is entitled to be present at the hearing of the appeal, or is granted leave to be present at it or at any proceedings preliminary or incidental thereto, the Chief Justice may order that the party be brought before the Court from day to day as may be necessary.

(5) An order made under subsection (4) shall

• (a) when the party is a service convict, service prisoner or service detainee, be addressed to a committing authority prescribed or appointed pursuant to subsection 219(1) of the Act and, on receipt of it, that committing authority shall cause the party to be temporarily removed from the place to which the party has been committed for such period as may be specified in the order, and brought before the Court; and
• (b) when the party is not a service convict, service prisoner or service detainee, be addressed to the person who has custody of the party and, on receipt thereof, that person shall deliver the party to any person who is named in the order to receive him, or bring him before the Court upon such terms and conditions as the Chief Justice may prescribe.

(6) [Repealed.]

Return to top

Special Dispositions

RULE 28. (1) The Chief Justice or the Court may

• (a) where the appellant is not ready to proceed with his appeal when called upon to do so, dismiss the appeal;
• (b) where the respondent is not ready to proceed with an appeal when called upon to do so, order the appellant to proceed ex parte;
• (c) upon cause shown, postpone the hearing of the appeal to another time;
• (d) upon motion, or without motion on its own initiative, dismiss an appeal where the appellant has failed to observe, without dispensation, any requirement of the Act or these Rules;
• (e) extend or abridge any time limited by these Rules before or after the expiration of the time prescribed; and
• (f) make any order that justice requires.

(2) Notwithstanding subsection (1), no order or judgment the effect of which is to dispose finally of an appeal, including an appeal under section 248.9 of the Act, shall be made, except by the Court.

(3) When, in his opinion, there is a significant issue of law involved in the disposition of any matter which, by the Rules, is required to be disposed of by him, the Chief Justice may refer the matter to the Court for disposition or may state a case for its opinion.

Return to top

Practice and Procedures at Hearings

RULE 29. On the hearing of an appeal no ground of appeal other than those set out in the Notice of Motion, the Notice of Appeal or in the Memorandum of Fact and Law may be argued, except by leave of the Court, and, save in exceptional cases, leave shall not be granted unless reasonable notice of the additional grounds has been given by the appellant to the respondent.

RULE 30. On the hearing of an appeal, unless the Court otherwise directs, the arguments of the appellant shall be heard first and the appellant shall have the right to reply to the respondent's arguments, if any.

RULE 31. The presiding judge may adjourn any sitting or hearing from time to time and place to place.

Return to top

Evidence and Witnesses

RULE 32. (1) No new evidence may be introduced at a hearing of an appeal by a party unless that party, before the making of the order setting the appeal down for hearing under section 4.1,

• (a) applies to the Court for the Court's consent and direction in respect of the hearing of the evidence; and
• (b) receives the consent and direction of the Court in respect of the hearing of the evidence.

(2) By leave of the Court or a judge, for special reason, a witness may be called to testify in relation to an issue of fact raised on an application.

(3) A witness appearing at a hearing shall be required to give his evidence under oath or solemn affirmation in the form prescribed for use in the case of a court martial.

RULE 33. Any witness who gives evidence before the Court shall, unless the Court otherwise directs if it is considered just in the circumstances and subject to any statutory authorization for payment from time to time, be entitled to the witness's expenses in accordance with the applicable tariff of the Federal Court Rules, 1998.

RULE 34. (1) The attendance of a witness at a hearing may be required by order of the Court or a judge, but no person shall be held in contempt in respect of the order unless a certified copy of it had been served on the person at least two days before the person's attendance was required and there had, at the time of service, been paid or tendered to the person an amount sufficient for witness fees and travelling expenses in accordance with the applicable tariff of the Federal Court Rules, 1998.

(2) The order requiring a witness to attend at a hearing may require the production of documents by him.

Return to top

Judgments and Orders

RULE 35.(1) Every judgment and order shall be committed to writing, signed by the presiding judge, and filed.

(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 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.

Return to top

Abandonment of Procedures

RULE 36. (1) A party may abandon a proceeding begun by the party at any time by notice filed with the Registry and served on the respondent and the Court Martial Administrator.

(2) A notice of abandonment under subsection (1) shall be signed

• (a) by the party and a witness to the party's signature and be supported by an affidavit or other evidence of the witness as to the signature of the party; or
• (b) where the appellant is represented by counsel, by such counsel, who shall state in the notice that he has consulted his client and is authorized by his client to abandon the proceeding.

RULE 37. An appeal may be considered to have been abandoned for want of prosecution where

• (a) the Notice of Appeal does not, in the opinion of the Court, contain sufficient particulars of the grounds upon which it is founded and the appellant has failed, within a reasonable time, to comply with an order requiring the furnishing of such particulars;
• (b) the appellant has failed to include an address for service in the Notice of Appeal or, if the Notice of Appeal is not signed by counsel, counsel named to accept service refuses to do so;
• (c) the respondent has reason to believe that the appellant intends to abandon the appeal and files an affidavit deposing to that reason in the Registry and the appellant fails, within reasonable time, to respond to a request by the Registry for an expression of intention as to the abandonment or otherwise of the appeal; or
• (d) the appellant has failed to appear at the time and place fixed for the hearing.

Return to top

Seal

RULE 38.(1) The seal of the Court shall be of a design approved by the Chief Justice and shall be kept by the Administrator at the Registry at Ottawa.

(2) If the Chief Justice so directs, there may be one or more facsimiles of the seal to be kept at offices of the Registry elsewhere than Ottawa and to be used by registry officers on duty with the Court or a judge where there is no office of the Registry.

Return to top

Judicial Administrator

RULE 39. (1) The Chief Justice may, by order, designate an officer of the Registry as Judicial Administrator and may revoke such designation at any time. The designation of a Judicial Administrator shall be automatically revoked when the Chief Justice by whom it was made ceases to hold office as such.

(2) The Judicial Administrator shall perform such part of the non-judicial work of the Chief Justice as the latter may delegate and an order signed by the Judicial Administrator in respect of a matter delegated shall be deemed to be an order of the Chief Justice.

Return to top

Duties of the Administrator

RULE 40. (1) The Administrator shall perform the duties required of him under these Rules or assigned to him from time to time by the Chief Justice or the Court and, in accordance with such directions as may from time to time be given by the Chief Justice or the Court, establish the duties to be performed by persons employed in the Registry.

(2) The Administrator's duties shall include

• (a) receiving and filing all papers, documents and exhibits transmitted to him in connection with appeals;
• (b) entering in an appropriate book provided for that purpose a list of appeals set down for hearing by the Court;
• (c) transmitting to each judge by whom an appeal is to be heard, a copy of the memoranda of fact and law and the appeal book relating to that appeal;
• (d) attending with all relevant records, exhibits and papers at sittings of the Court;
• (e) keeping a full and correct record of all proceedings before the Court, showing the names of the judges of the Court present, the date and place, the names of counsel, the result of the appeal, the judgment given and the time occupied by the hearing;
• (f) causing a transcript of all viva voce evidence to be taken by a qualified reporter;
• (g) transmitting to the parties to an appeal, to the Judge Advocate General and to the Court Martial Administrator the judgment of the Court;
• (g.1) transmitting to the parties to a proceeding, the Court Martial Administrator and the Judge Advocate General any order disposing of an application made under Division 3 or 10 of Part III of the Act;
• (h) subject to paragraph (j), returning to the Court Martial Administrator the original minutes of the proceedings of the court martial or hearing under Division 3 or 10 of Part III of the Act;
• (i) subject to paragraph (h), retaining possession of all papers, documents and exhibits in respect of an appeal, unless otherwise required by the Chief Justice; and
• (j) where an appeal has been taken to the Supreme Court of Canada, transmitting to it all papers, documents and exhibits in his possession required by that Court.

Return to top