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

Fees and Costs

• RULE 21 (1) If a party other than the Minister is represented by counsel, the Court may direct that all or part of the counsel’s fees in relation to the appeal or application be paid, as assessed by an assessment officer in accordance with Tariff B of the Federal Courts Rules.

• (2) The Court may direct that all or part of the party’s costs in the Court in relation to the appeal or application be paid, as assessed by an assessment officer in accordance with Tariff A or B, as applicable, of the Federal Courts Rules.

• RULE 22 (1) An assessment under Rule 21 is subject to review if an application is made within 10 days after the day on which the assessment is made.

• (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.

Service of Documents

• RULE 23 (1) Unless otherwise ordered by a judge and subject to subsections (2), (5) and (7), service of a document on any of the following persons shall be effected by personal service, registered mail or courier to their address for service or by fax or email:

  • (a) an appellant or applicant;

  • (b) a respondent;

  • (c) the Attorney General of Canada or the attorney general of a province; and

  • (d) the Court Martial Administrator, the Director of Defence Counsel Services or the Minister.

• (2) A party who is self-represented shall not be served with a document by fax or email.

• (3) Counsel who is representing a party only for part of a proceeding may be served only with documents that pertain to a subject matter that is within the counsel’s mandate set out in the notice filed under subsection 19(3).

• (4) Except as otherwise ordered by a judge, service of a document on a party’s counsel of record is effected by

  • (a) leaving a copy of the document at the counsel’s business address or sending it by courier or registered mail to that address; or

  • (b) transmitting a copy of the document to the counsel by fax or email.

• (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) Service of a document in Quebec may also be proven by a certificate of a bailiff or other authorized person in accordance with Quebec’s Code of Civil Procedure.

• RULE 23.01 (1) A document that is served by fax shall be printed on paper measuring 21.5 cm by 28 cm.

• (2) A document that is more than 40 pages in length shall not be served by fax without the recipient’s prior consent.

• (3) A document that is served by fax shall have a cover page that sets out the following information:

  • (a) the name, address, telephone number and email address of the sender;

  • (b) the name of the counsel being served;

  • (c) the date and time of transmission; and

  • (d) the total number of pages transmitted, including the cover page.

• (4) Despite subsection (3), the information referred to in paragraph (3)(b) is not required for a document that is being served on the Court Martial Administrator or the Director of Defence Counsel Services.

• RULE 23.02 (1) A party shall not be served with documents by email unless they have given consent for service by email in accordance with subsection (3) or after they withdraw that consent in accordance with subsection (4).

• (2) The Court Martial Administrator and counsel appointed by either the Director of Military Prosecutions or the Director of Defence Counsel Services are deemed to have given consent to service by email. However, that consent may be withdrawn in accordance with subsection (4).

• (3) A party consents to the service of documents by email by filing with the Registry a notice of consent to service by email, in the form set out in Schedule 7.3.

• (4) A party withdraws their consent to service of documents by email by filing with the Registry a notice of withdrawal of consent to service by email, in the form set out in Schedule 7.4.

• (5) A notice referred to in subsection (3) or (4) is effective beginning on the day on which it is filed with the Registry.

• RULE 23.03 (1) Unless otherwise ordered by the Court, a document that is served by email shall be formatted in PDF (Portable Document Format), or in any other format approved by the Court, such that the document can be searched electronically.

• (2) The email shall set out the following information:

  • (a) the title of the document that is being served;

  • (b) the name, address, telephone number and email address of the sender;

  • (c) the name of the party being served and, if applicable, their counsel’s name; and

  • (d) the number of attachments and, for each attachment, its total number of pages.

• RULE 23.04 (1) Subject to subsection (2), service of a document is effected

  • (a) if it is served by personal service, on the day on which the document is left with the person being served or their counsel;

  • (b) if it is served within Canada by registered mail, on the fifth day after the day on which it is mailed;

  • (c) if it is served outside of Canada by registered mail, on the seventh day after the day on which it is mailed;

  • (d) if it is served within Canada by courier, on the second day after the day on which the document is provided to the courier;

  • (e) if it is served outside Canada by courier, on the fourth day after the day on which the document is provided to the courier;

  • (f) if it is served by fax, on the day of transmission that is indicated on the transmission confirmation receipt; and

  • (g) if it is served by email, on the day on which it is sent.

• (2) Except for a document that is served by personal service, if a document is served on a holiday or after 5:00 p.m. local time at the recipient’s location, service of the document is effected on the next day that is not a holiday.

Filing of Documents

• RULE 23.1 (1) Subject to subsections (2) and (3), documents shall be filed, with the Registry’s principal office in Ottawa or with any other Registry office that is established by the Administrator, in person or by registered mail, courier, fax or electronic transmission.

• (2) The appeal book referred to in subsection 6(5) shall not be filed with the Registry by electronic transmission.

• (3) The following documents may not be filed by fax without the consent of the Administrator, which consent may be given where filing by fax 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 fax shall include a cover page that sets out the following information:

  • (a) the name, address, telephone number and email address 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 fax 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.

• (4.1) A document that is filed by electronic transmission shall be formatted in PDF (Portable Document Format), or in any other format approved by the Court, such that the document can be searched electronically, and the document shall be accompanied by the following information:

  • (a) the title of the document being filed; and

  • (b) the name, address, telephone number and email address of the sender.

• (4.2) A party who files a document by electronic transmission shall

  • (a) provide a paper copy of the document in person, by registered mail or by courier to the Registry within five days after the day on which the document is filed; and

  • (b) if required by the Court, provide the Registry with the same number of paper copies of the document as would have been required had the document been filed in paper copy.

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

• (5.1) Before dating a document under subsection (5), the Administrator shall verify whether the document is in the form required by these Rules. If the document is not in the required form, the Administrator shall, without delay, refer the document to a judge for directions.

• (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.

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 subsection 12(1) or a petition referred to in subsection 13.1(1), shall be disposed of without the personal appearance of the parties on the basis of the written and signed consent of the parties or, if any, the affidavit and written representations that are referred to in subsection 24(2), (3) or (3.1).

• (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.

• 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.

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, SOR/2001-91, s. 26]