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

Regulations are current to 2020-06-17

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

Constitutional Questions

  •  (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.

  • SOR/91-162, s. 1
  • SOR/2001-91, s. 9

Release from Pre-trial Custody and Release Pending Appeal

[SOR/2001-91, s. 10]
  •  (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).

  • SOR/92-152, s. 3
  • SOR/2001-91, s. 11
 
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