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

Regulations are current to 2024-04-01 and last amended on 2022-12-21. Previous Versions

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

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

 [Repealed, SOR/2022-253, s. 1]

Interpretation

 In these Rules,

Act

Act means the National Defence Act; (Loi)

Administrator

Administrator means the Chief Administrator appointed under section 5 of the Courts Administration Service Act, or a person acting on their behalf; (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 member of the bar of a province; (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 means a Saturday or any other day defined as a holiday 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 that is required by section 232 of the Act, the form of which is prescribed by paragraph 115.08(2) of the Queen’s Regulations and Orders for the Canadian Forces; (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[Repealed, SOR/2022-253, s. 2]

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]

General

 These Rules apply to all proceedings before the Court.

  •  (1) 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.

  • (2) The Court may, on motion or its own initiative, provide for any procedural matter that is not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject matter of the proceeding most closely relates.

  • (3) A form that is required by these Rules may incorporate any variations that are necessary in the circumstances.

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

Time and Place of Hearings

[
  • SOR/2022-253, s. 5
]
  •  (1) For each proceeding in which a hearing is to be held, the Chief Justice shall

    • (a) designate each judge that will sit at the hearing; and

    • (b) make an order fixing the date, time, place and manner of the hearing.

  • (1.1) A hearing shall be conducted, in whole or in part, in person, by telephone or by videoconference.

  • (1.2) The Court may give any directions that are necessary to facilitate the conduct of the hearing.

  • (2) The Registry shall send a copy of the order referred to in paragraph (1)(b) 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.

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

    • (a) be legible;

    • (b) if it is in type, be in Times New Roman, Arial or Tahoma font that is at least 12 points in size or, in the case of footnotes, at least 10 points in size;

    • (c) be dated;

    • (d) have a cover page that sets out the Court file number, the style of cause and the document’s title;

    • (e) if there is more than one component to the document, have a table of contents; and

    • (f) set out the name, address, telephone and fax numbers and email address of the counsel who is filing the document or, if the party is not represented by counsel, of the party.

  • (3) If the document is on paper, each page of the document shall

    • (a) be printed on good quality white or off-white paper measuring 21.5 cm by 28 cm; and

    • (b) in the case of a document other than a book of authorities,

      • (i) have top and bottom margins of not less than 2.5 cm and left and right margins of not less than 3.5 cm,

      • (ii) be printed on one side of the paper only, and

      • (iii) have no more than 30 lines, exclusive of headings.

  • (4) A memorandum of fact and law that is on paper shall have

    • (a) in the case of the appellant’s memorandum, a beige cover;

    • (b) in the case of the respondent’s memorandum, a green cover; and

    • (c) in the case of an intervener’s memorandum, a blue cover.

  • (4.1) If the document is in electronic format, it 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 converted for printing on paper measuring 21.5 cm by 28 cm, with each page of the document meeting the requirements set out in paragraph (3)(b).

  • (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.

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 that sets out the date of the decision appealed from;

    • (b.1) an application under section 248.2 of the Act for release until the determination of the appeal;

    • (c) an application for review under section 248.8 of the Act that sets out the date of the undertaking to be reviewed;

    • (c.1) an application under section 248.81 of the Act to address a breach or likely breach of an undertaking; and

    • (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).

Obligations of the Court Martial Administrator

  •  (1) Within 30 days after being served with a Notice of Appeal, 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) and (4), the Court Martial Administrator shall cause the Record to be forwarded to the Registry within 90 days after the day on which the Court Martial Administrator is served with a copy of a document under subsection 5(2) or a copy of documents and a petition under subsection 13.1(4).

  • (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, when causing the Record to be forwarded to the Registry, file with the Registry five paper copies of the appeal book, prepared and certified in accordance with Schedule 4, and serve a copy of the book on the parties and file proof of service with the Registry within 10 days after the day on which the book is served.

  •  (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 the day on which the appellant is served with the appeal book, the appellant shall serve a copy of their Memorandum of Fact and Law on the respondent and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

  • (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 statutes, regulations and authorities on which the appellant intends to rely in their argument.

  • (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]

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
 

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