Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada (SOR/86-959)

Respondent’s Memorandum of Fact and Law

• RULE 9 (1) Within 30 days after the day on which the respondent is served with the appellant’s Memorandum of Fact and Law, the respondent shall serve a copy of their Memorandum of Fact and Law on the appellant and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

• (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 statutes, regulations and authorities on which the respondent intends to rely in their argument.

Memorandum in Reply

• RULE 10 (1) If the respondent has served a notice of cross-appeal and has, in their Memorandum of Fact and Law, advanced arguments in support of varying the decision under appeal, the appellant shall, within 30 days after the day on which they are served with the respondent’s Memorandum of Fact and Law, serve a copy of the appellant’s Memorandum in Reply on the respondent and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

• (1.1) The Memorandum in Reply shall, with any necessary modifications as the circumstances require, contain the information referred to in subsection 9(2).

• (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, within 20 days after the day on which the period referred to in subsection (1) ends, serve and file a requisition for hearing in the form referred to in that subsection.

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.

Book of Authorities

• RULE 11.2 (1) The parties shall file one electronic copy, or five paper copies, of a joint book of authorities that contains the statutes, regulations and authorities on which the parties intend to rely. However, if the parties cannot agree on a joint book, each party shall file a separate book that does not reproduce any of the documents included in any other party’s book.

• (2) The joint book or the separate books, as the case may be, shall be filed no later than 30 days before the day on which the hearing is scheduled to begin.

• (3) A book of authorities that is on paper shall

  • (a) in the case of a joint book, have a burgundy cover; and

  • (b) in the case of a separate book, have a cover that is the same colour as the party’s Memorandum of Fact and Law.

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.

• (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.

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.

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 respondent may apply to a judge for an order under subsection (1).

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 the 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) Subject to subsections (2) and (3), sections 26 to 28 of the Interpretation Act apply to the computation of time limits under these Rules or an order of the Court.

• (2) A holiday shall not be included in the computation of a time limit that is less than six days.

• (3) A day that is within the period beginning on December 21 in a year and ending on January 7 in the following year shall not be included in the computation of a time limit, except for a time limit that is for the doing of a thing in relation to an application made under Division 3 or 10 of Part III of the Act.

Representation of Parties

• RULE 19 (1) A party may be self-represented in any appeal or application under these Rules or they may be represented for all or part of those proceedings by counsel.

• (2) Subject to subsection (3), counsel who, on behalf of a party, signs a document that is filed with the Registry is the party’s counsel of record until a change of counsel is made in accordance with this Rule.

• (3) Counsel who is representing a party only for part of a proceeding shall serve a notice, in the form set out in Schedule 7.1, on every other party and the Court Martial Administrator and file it with the Registry.

• (3.1) Counsel who is representing a party only for part of a proceeding is the party’s counsel of record only with respect to the subject matter that is within the mandate set out in the notice filed under subsection (3).

• (3.2) Counsel who is representing a party only for part of a proceeding ceases their limited-scope representation of the party when they serve a notice, in the form set out in Schedule 7.2, on the party, every other party and the Court Martial Administrator and file it with the Registry.

• (3.3) A party who is self-represented for all or part of a proceeding shall serve a notice, setting out the party’s address for service in Canada and a telephone number and an email address at which they can be contacted, on every other party and the Court Martial Administrator and file it with the Registry.

• (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) Counsel of record who ceases to represent a party may make an application for an order declaring that they are no longer the party’s counsel of record. Counsel shall give notice of the application to each party and, if counsel for any party was appointed by the Director of Defence Counsel Services, to the Director of Defence Counsel Services.

• (7) Counsel shall serve the order referred to in subsection (6) on each party, the Court Martial Administrator and, if applicable, the Director of Defence Counsel Services.

• (8) The order takes effect when counsel files with the Registry proof that the order has been served in accordance with subsection (7).

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.