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Court Martial Appeal Court Rules (SOR/86-959)

Regulations are current to 2022-08-08

Court Martial Appeal Court Rules

SOR/86-959

NATIONAL DEFENCE ACT

Registration 1986-09-11

Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada

P.C. 1986-2080 1986-09-11

Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence and the Minister of Justice, is pleased hereby, pursuant to subsection 207(1)Footnote * and section 211.82Footnote ** of the National Defence Act, to approve the revocation, by the Chief Justice of the Court Martial Appeal Court of Canada, of the Court Martial Appeal Rules of Canada, approved by Order in Council P.C. 1979-589 of March 1, 1979Footnote ***, and to approve the Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada, made by the Chief Justice of the Court Martial Appeal Court of Canada on June 16, 1986, in substitution therefor.

The Chief Justice of the Court Martial Appeal Court of Canada, pursuant to subsection 207(1)Footnote * and section 211.82Footnote ** of the National Defence Act, and subject to the approval of the Governor in Council, hereby revokes the Court Martial Appeal Rules of Canada, approved by Order in Council P.C. 1979-589 of March 1, 1979Footnote ***, and makes the annexed Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada, in substitution therefor.

Ottawa, June 16, 1986

PATRICK M. MAHONEY
Chief Justice
Court Martial Appeal Court of Canada

Short Title

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

  • SOR/2001-91, s. 2

Interpretation

 In these Rules,

Act

Act means the National Defence Act; (Loi)

Administrator

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

appellant

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

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

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

Court

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

Court Martial Administrator

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

holiday

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

Judicial Administrator

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

Minister

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

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

Record

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

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

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

Statement of Appeal[Revoked, SOR/92-152, s. 1]

  • SOR/92-152, s. 1
  • SOR/2001-91, s. 3

General

 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.

The Judges

 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.

  • SOR/2001-91, s. 4

Schedule of Hearings

  •  (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.

  • SOR/2001-91, s. 4

Form of Documents

  •  (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.

  • SOR/2001-91, s. 4

Commencement of Proceedings

  •  (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).

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 4

Obligations of the Court Martial Administrator

  •  (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.

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 4
  •  (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.

  • SOR/2001-91, s. 4

Appellant’s Memorandum of Fact and Law

  •  (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, SOR/2001-91, s. 5]

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 5

Quashing an Appeal

  •  (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.

  • SOR/92-152, s. 2

Respondent’s Memorandum of Fact and Law

  •  (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.

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 6

Memorandum in Reply

  •  (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.

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 7

Request for Hearing

  •  (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).

  • SOR/92-152, s. 2
  • SOR/2001-91, s. 8
 
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