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Procedural Charts

The following are charts outlining the typical steps in various types of proceedings that can be brought before the Court Martial Appeal Court of Canada.

Disclaimer statement: The procedural charts provided here have been prepared for informational and educational purposes. The charts are not intended to provide legal advice or definitive guidance with respect to proceedings before the Court Martial Appeal Court of Canada. Please carefully review the provisions of the National Defence Act and the Rules of the Court Martial Appeal Court for the procedural requirements applicable in your case.  A party or their counsel are responsible for performing their own due diligence independently of the information provided here.

 

 

TYPICAL STEPS IN AN APPEAL OF A DECISION MADE BY THE COURT MARTIAL

Who

Does what

When

Applicable section /rule1 /schedule

Appellant

Files Notice of Appeal with the Registry2

Within 30 days after the date on which the court martial terminated its proceedings

  • Sections 230, 230.1 and 232 of the NDA3
  • Rules 5(1)(b) and 23.1

Appellant

Serves Notice of Appeal on the Respondent and the Court Martial Administrator

Within 10 days after filing Notice of Appeal

  • Rules 5(2) and 23

Appellant

Files Proof of service with the Registry

Within 10 days after serving Notice of Appeal

  • Rules 5(2) and 23.1

Respondent

Serves Notice of Appearance OR Notice of Cross-Appeal on the Appellant and Court Martial Administrator

Within 15 days after being served with the Notice of  Appeal

  • Rules 5(3) and 23
  • Schedule 1 or 2

Respondent

 

Files Notice of Appearance OR Notice of Cross-Appeal with the Registry

Within 15 days after being served with the Notice of  Appeal

  • Rules 5(3) and 23.1
  • Schedule 1 or 2

Court Martial Administrator

Files five copies of the appeal book with the Registry

Within 90 days after being served with the Notice of Appeal

  • Rule 6(5)
  • Rule 23.1
  • Schedule 4

Court Martial Administrator

Serves appeal book on both the Appellant and Respondent

Within 90 days after being served with the Notice of Appeal

  • Rule 6(5)
  • Rule 23

Appellant

Serves Memorandum of Fact and Law on the Respondent

Within 30 days after being served by the Court Martial Administrator with the appeal book

  • Rules 7 and 23

Appellant

Files five copies of Memorandum of Fact and Law with the Registry

Within 30 days after being served by the Court Martial Administrator with the appeal book

  • Rules 7 and 23.1

Respondent

Serves Memorandum of Fact and Law on the Appellant

Within 30 days after being served with the Appellant’s Memorandum of Fact and Law

  • Rules 9 and 23

Respondent

Files five copies of Memorandum of Fact and Law with the Registry

Within 30 days after being served with the Appellant’s Memorandum of Fact and Law

  • Rules 9 and 23.1

Appellant

Serves Memorandum of Fact and Law on the Respondent (Only if the Respondent served a Notice of cross-appeal seeking to vary the decision under appeal)

Within 30 days after being served with the Respondent’s Memorandum of Fact and Law

  • Rules 10 and 23

Appellant

Files five copies of Memorandum of Reply with the Registry (Only if the Respondent served a Notice of cross-appeal seeking to vary the decision under appeal)

Within 30 days after being served with the Respondent’s Memorandum of Fact and Law

  • Rules 10 and 23.1

Appellant

Serves Requisition for Hearing on the Respondent

Within 20 days after being served with the Respondent's Memorandum of Fact and Law OR within 20 days of having served the Appellant’s Memorandum in Reply, as the case may be

  • Rules 11 (1) and 23
  • Schedule 5

Appellant

Files Requisition for Hearing with the Registry

Within 20 days after being served with the Respondent's Memorandum of Fact and Law OR within 20 days of having served the Appellant’s Memorandum in Reply, as the case may be

  • Rules 11 (1) and 23.1
  • Schedule 5

Respondent

Serves Requisition for Hearing on the Appellant (Only if the Appellant does not file a requisition for hearing within the timeframe provided in Rule 11(1))

Any time after the 20-day timeframe provided in Rule 11(1)

  • Rule 11(2) and 23
  • Schedule 5

Respondent

Files Requisition for Hearing with the Registry (Only if the Appellant does not file a requisition for hearing within the timeframe provided in Rule 11(1))

Any time after the 20-day timeframe provided in Rule 11(1)

  • Rule 11(2) and 23.1
  • Schedule 5

 

The appeal is then scheduled and heard by the Court Martial Appeal Court of Canada

IMPORTANT: All documents, other than the Appeal Book and the Notice of Appeal, must be filed with proof of service (Please see Rules 23(8) and 23.1(6) along with Schedules 8 and 9)

 

TYPICAL STEPS IN AN APPLICATION FOR RELEASE PENDING APPEAL BY A JUDGE OF THE CMAC

 

Who

Does what

When

Applicable section /rule1 /schedule

Applicant

Serves Notice of Motion and supporting Affidavit on the Respondent. The Applicant may attach to the Notice of Motion written representations.

When the Applicant has not applied under section 248.1 of the NDA3 (see section 248.2 of the NDA3)
Any time after an appeal under Division 9 of the NDA3has been commenced, if the applicant has not already applied for release to the Court Martial

  • Section 248.2 of the NDA3
  • Rules 12, 23, and 24
  • Schedules 3 and 7

Applicant

Files Notice of Motion and supporting Affidavit with the Registry. The Applicant may attach to the Notice of Motion written representations.

When the Applicant has not applied under section 248.1 of the NDA3 (see section 248.2 of the NDA3)
Any time after an appeal under Division 9 of the NDA3 has been commenced, if the applicant has not already applied for release to the Court Martial

  • Section 248.2 of the NDA3
  • Rules 12, 23, and 24
  • Schedules 3 and 7

Any Other Party

Serves consent to the motion on any other parties OR serves an affidavit and written representation in reply to oppose the motion on any other parties.

Within 15 days after being served with a Notice of Motion

  • Rule 23 and 24(3.1)

Any Other Party

Files consent to the motion with the Registry OR files an affidavit and written representation in reply to oppose the motion with the Registry.

Within 15 days after being served with a Notice of Motion

  • Rule 23.1 and 24(3.1)

 

IMPORTANT: All documents must be filed with proof of service (Please see Rules 23(8) and 23.1(6) along with Schedules 8 and 9)

TYPICAL STEPS IN AN APPLICATION FOR REVIEW OF ANY DIRECTION OF A MILITARY JUDGE TO RELEASE A PERSON FROM CUSTODY OR TO RETAIN A PERSON IN CUSTODY

Who

Does what

When

Applicable section /rule1 /schedule

Applicant

Files Application for review, including a Notice of Motion and supporting Affidavit with the Registry. The Applicant may attach written representations to his or her Notice of Motion

at any time before the commencement of a person’s trial before the courts martial.

  • Section 159.9 of the NDA3
  • Rules 5(1)(a), 5(2), 12(1), 23.1, 24 and 25
  • Schedules 3 and 7

Applicant

Serves Application for review, including the Notice of Motion and supporting Affidavit and written representations (as applicable) on the Respondent and Court Martial Administrator.

Within 10 days after filing Application for Review

  • Rule 5(2)
  • Rule 23

Applicant

Files Proof of service with the Registry

Within 10 days after serving Application for Review

  • Rule 5(2)
  • Rule 23.1

Respondent

Serves Notice of Appearance OR Notice of Cross-Appeal on the Applicant and the Court Martial Administrator

Within 15 days of being served with an Application for Review

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23

Respondent

Files Notice of Appearance OR Notice of Cross-Appeal with the Registry

Within 15 days of being served with an Application for Review

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23.1

Any Other Party

Serves consent to the motion on any other parties OR serves an affidavit and written representation in reply to oppose the motion on any other parties.

Within 15 days after being served with an Application for Review

  • Rule 24(3.1)
  • Rule 23

Any Other Party

Files consent to the motion with the Registry OR files an affidavit and written representation in reply to oppose the motion with the Registry

Within 15 days after being served with an Application for Review

  • Rule 24(3.1)
  • Rule 23.1

IMPORTANT: All documents, other than the Application for Review, must be filed with proof of service (Please see Rules 23(8) and 23.1(6) along with Schedules 8 and 9)

TYPICAL STEPS IN AN APPLICATION FOR REVIEW OF THE CONDITIONS OF AN UNDERTAKING WHEN A PERSON IS RELEASED PENDING APPEAL

Who

Does what

When

Applicable section /rule1 /schedule

Applicant

Files Application for review, including a Notice of Motion and supporting Affidavit with the Registry. The Applicant may attach written representations to his or her Notice of Motion

At any time from the date of the undertaking to be reviewed

  • Section 248.8 of the NDA3
  • Rules 5(1)(c), 5(2), 12(1), 23.1, 24 and 25
  • Schedules 3 and 7

Applicant

Serves Application for review, including a Notice of Motion and supporting Affidavit and written representations (as applicable) on the Respondent and Court Martial Administrator.

Within 10 days after filing Application for Review

  • Rule 5(2)
  • Rule 23

Applicant

Files Proof of service with the registry

Within 10 days after serving Application for Review

  • Rule 5(2)
  • Rule 23.1

Respondent

Serves Notice of Appearance OR Notice of Cross-Appeal on the Applicant and the Court Martial Administrator

Within 15 days of being served with an Application for Review

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23

Respondent

Files Notice of Appearance OR Notice of Cross-Appeal with the Registry

Within 15 days of being served with an Application for Review

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23.1

Any Other Party

Serves consent to the motion on any other parties OR serves an affidavit and written representation in reply to oppose the motion on any other parties.

Within 15 days after being served with an Application for Review

  • Rule 24(3.1)
  • Rule 23

Any Other Party

Files consent to the motion with the Registry OR files an affidavit and written representation in reply to oppose the motion with the Registry

Within 15 days after being served with an Application for Review

  • Rule 24(3.1)
  • Rule 23.1

IMPORTANT: All documents, other than the Application for Review, must be filed with proof of service (Please see Rules 23(8) and 23.1(6) along with Schedules 8 and 9)

 

Who

Does what

When

Applicable section /rule1 /schedule

Applicant

Files Notice of Motion and supporting Affidavit with the Registry. The Applicant may attach written representations to his or her Notice of Motion

At any time from the date of refusal to grant a person’s application to be released from detention or imprisonment OR at any time from the date an order under section 248.81 of the NDA3is issued

  • Section 248.9 of the NDA3
  • Rule 5(1)(d), 5(2), 12(1), 23.1, 24 and 25
  • Schedules 3 and 7

Applicant

Serves Notice of Motion and supporting Affidavit and written representations (as applicable) on the Respondent and Court Martial Administrator

Within 10 days after filing Notice of Motion

  • Rule 5(2)
  • Rule 23

Applicant

Files Proof of service with the Registry

Within 10 days after serving Notice of Motion

  • Rule 5(2)
  • Rule 23.1

Respondent

Serves Notice of Appearance OR Notice of Cross-Appeal on the Applicant and the Court Martial Administrator

Within 15 days after being served with Notice of Motion

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23

Respondent

Files Notice of Appearance OR Notice of Cross-Appeal with the Registry

Within 15 days after being served with Notice of Motion

  • Rule 5(3)(a)
    • Schedule 1
  • Rule 5(3)(b)
    • Schedule 2
  • Rule 23.1

Any Other Party

Serves consent to the motion on any other parties OR serves an affidavit and written representation in reply to oppose the motion on any other parties.

Within 15 days after being served with a Notice of Motion

  • Rule 24(3.1)
  • Rule 23

Any Other Party

Files consent to the motion with the Registry OR files an affidavit and written representation in reply to oppose the motion with the Registry

Within 15 days after being served with a Notice of Motion

  • Rule 24(3.1)
  • Rule 23.1

IMPORTANT: All documents, other than the Notice of Motion, must be filed with proof of service (Please see Rules 23(8) and 23.1(6) along with Schedules 8 and 9)

1. Rule refers to the Rules contained in the Court Martial Appeal Court Rules, SOR/86-959

2. If you are raising a Constitutional Question, please consult Rule 11.1 & Schedule 6, as further procedural requirements will arise.

3. NDA refers to the National Defence Act, R.S.C., 1985, c. N-5

Date modified: 2020-03-02