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

Regulations are current to 2022-07-13

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
  •  (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.

  • SOR/92-152, s. 4
  • SOR/2001-91, s. 12

Petition for New Trial

  •  (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.

  • SOR/2001-91, s. 12

Production of Documents and Particulars

  •  (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.

  • SOR/92-152, s. 4
  • SOR/2001-91, s. 13

 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.

  • SOR/92-152, s. 4
  •  (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).

  • SOR/92-152, s. 5
  • SOR/2001-91, s. 14

Time

  •  (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.

  • SOR/92-152, s. 6
  • SOR/2001-91, s. 15
  •  (1) Where the time limit imposed by the Rules or an order is less than six days from or after any event, a holiday shall not be reckoned in the computation of such limited time.

  • (2) Where the time limit for doing a thing expires or falls on a Saturday or holiday, the thing may be done on the day next following that is not a Saturday or holiday.

  • SOR/2001-91, s. 16(E)

Representation by Counsel

  •  (1) A party may begin and carry on an appeal or an application in person or by counsel.

  • (2) Barristers or advocates are officers of the Court and may practise in the Court if they are

    • (a) entitled by law to practise as barristers or advocates in any province or territory of Canada; or

    • (b) assigned to practise in the Court by the Judge Advocate General.

  • (3) When a party files any document in the Registry signed on his behalf by counsel, that counsel shall be and remain the party’s counsel of record until a change is effected in a manner provided for by this Rule.

  • (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) Where, for any reason, the counsel of record ceases to represent a party, that counsel may apply for an order declaring that the counsel is no longer counsel of record, provided that notice of the application is given to the parties and, if counsel was appointed by the Director of Defence Counsel Services, the Director of Defence Counsel Services. The counsel shall serve the order on the parties, the Court Martial Administrator and the Director of Defence Counsel Services and the order shall not take effect until proof of that service has been filed.

  • (7) A party who is no longer represented by counsel of record shall file with the Registry and serve on the other parties and the Court Martial Administrator a notice of the party’s address and telephone and facsimile numbers for service in Canada.

  • SOR/92-152, s. 7
  • SOR/2001-91, s. 17

Appointment of Counsel by the Director of Defence Counsel Services

[
  • SOR/2001-91, s. 18
]
  •  (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.

  • SOR/92-152, s. 8
  • SOR/2001-91, s. 19

Fees and Costs

  •  (1) Where a party other than the Minister is represented by counsel, the Court may direct that all or any of the counsel’s fees in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

  • (2) The Court may direct that all or any of the party’s costs in the Court in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

  • SOR/2001-91, s. 20
  •  (1) Any taxation pursuant to Rule 21 is subject to review upon application made within 10 days of the date of any such taxation.

  • (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

  •  (1) Subject to subsections (4), (5) and (7), service of a document shall be effected

    • (a) in the case of service on an appellant or applicant, by personal service, registered mail or by a courier that assures service within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the Notice of Appeal, Notice of Motion commencing the proceeding or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;

    • (b) in the case of service on a respondent, by personal service, registered mail or by a courier that assures delivery within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the notice referred to in subsection 5(3) or (4) or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;

    • (c) in the case of service on the Court Martial Administrator, or a person acting on the Court Martial Administrator’s behalf,

      • (i) by mail or courier provided by Canada Post, addressed to

        The Court Martial Administrator
        Office of the Chief Military Judge
        National Defence Headquarters
        Ottawa, Ontario
        K1A 0K2
      • (ii) by personal service or by courier other than Canada Post, addressed to

        The Court Martial Administrator
        Office of the Chief Military Judge
        Asticou Centre, Block 1900
        241 boul. de la Cité-des-Jeunes
        Hull, Quebec
        J8Y 6L2
      • (iii) in the case of service by the Registry, by facsimile with a cover page that has the information set out in subparagraphs (4)(c)(i) and (iii) to (vi), provided that the Court Martial Administrator has furnished a standing revocable notice to the Registry of a facsimile number for that purpose;

    • (d) in the case of the Director of Defence Counsel Services or the Director’s agent:

      • (i) by mail or courier provided by Canada Post, addressed to

        The Director of Defence Counsel Services
        Asticou Centre, Block 1900
        National Defence Headquarters
        Ottawa, Ontario
        K1A 0K2
      • (ii) by personal service or by courier provided by other than Canada Post, addressed to

        The Director of Defence Counsel Services
        Asticou Centre, Block 1900
        241 boul. de la Cité-des-Jeunes
        Hull, Quebec
        J8Y 6L2
      • (iii) by facsimile, in the case of documents served by the Registry, provided that the covering page contains the information required by subparagraphs 4(c)(i) and (iii) to (vi) and that the Director of Defence Counsel Services has given the Registry a facsimile number by permanent and revocable notice;

    • (e) in the case of service on the Minister,

      • (i) by personal service on either the Minister or the Minister’s deputy or agent, or by registered mail addressed to

        The Minister of National Defence
        MGen George R. Pearkes Building
        National Defence Headquarters
        Ottawa, Ontario
        K1A 0K2
      • (ii) in the case of service by the Registry, by facsimile with a cover page that has the information set out in paragraph (4)(c), provided that the Minister has furnished a standing, revocable notice to the Registry of a facsimile number for that purpose;

    • (f) in the case of service on the Attorney General of Canada, by facsimile at (613) 941-2279 or by registered mail addressed to

      The Attorney General of Canada
      East Memorial Building
      284 Wellington Street
      Ottawa, Ontario
      K1A 0H8
    • (g) in the case of service on the attorneys general of the provinces, by facsimile or by registered mail at their facsimile number or address in their respective capital cities.

  • (2) Service of a document is deemed to have taken place on

    • (a) the second day after pick-up of the document by the courier, where the document is served by a courier that assures delivery within two days, excluding Saturdays and holidays; or

    • (b) the fifth day after posting the document, where the document is served by registered mail.

  • (3) When the second or fifth day after the pick-up by the courier or posting of the document falls on a Saturday or holiday, the service is deemed to have taken place on the next day that is not a Saturday or holiday.

  • (4) Service of a document on a party with a counsel of record may be effected

    • (a) by leaving a copy of the document at the counsel’s business address;

    • (b) by mailing a copy of the document to the counsel’s business address;

    • (c) by telephone transmission of a facsimile of the document to the counsel, provided that it includes a cover page setting out

      • (i) the name, address and telephone number of the sender,

      • (ii) the name of the counsel to be served,

      • (iii) the date and time of transmission,

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

      • (v) the telephone number of the source of the transmission, and

      • (vi) the name, address and telephone number of a person to contact if transmission problems occur; or

    • (d) in such other manner as a judge may order.

  • (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) Where service takes place in the Province of Quebec, service may also be proven by a certificate of a bailiff, sheriff or other authorized person in accordance with the Quebec Code of Civil Procedure.

  • SOR/91-162, s. 2
  • SOR/92-152, s. 9
  • SOR/2001-91, s. 21
 
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