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

Regulations are current to 2020-03-05

Release from Pre-trial Custody and Release Pending Appeal (continued)

[SOR/2001-91, s. 10]
  •  (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
 
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