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

• RULE 16 (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).

Time

• RULE 17 (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.

• RULE 18 (1) Subject to subsections (2) and (3), sections 26 to 28 of the Interpretation Act apply to the computation of time limits under these Rules or an order of the Court.

• (2) A holiday shall not be included in the computation of a time limit that is less than six days.

• (3) A day that is within the period beginning on December 21 in a year and ending on January 7 in the following year shall not be included in the computation of a time limit, except for a time limit that is for the doing of a thing in relation to an application made under Division 3 or 10 of Part III of the Act.

Representation of Parties

• RULE 19 (1) A party may be self-represented in any appeal or application under these Rules or they may be represented for all or part of those proceedings by counsel.

• (2) Subject to subsection (3), counsel who, on behalf of a party, signs a document that is filed with the Registry is the party’s counsel of record until a change of counsel is made in accordance with this Rule.

• (3) Counsel who is representing a party only for part of a proceeding shall serve a notice, in the form set out in Schedule 7.1, on every other party and the Court Martial Administrator and file it with the Registry.

• (3.1) Counsel who is representing a party only for part of a proceeding is the party’s counsel of record only with respect to the subject matter that is within the mandate set out in the notice filed under subsection (3).

• (3.2) Counsel who is representing a party only for part of a proceeding ceases their limited-scope representation of the party when they serve a notice, in the form set out in Schedule 7.2, on the party, every other party and the Court Martial Administrator and file it with the Registry.

• (3.3) A party who is self-represented for all or part of a proceeding shall serve a notice, setting out the party’s address for service in Canada and a telephone number and an email address at which they can be contacted, on every other party and the Court Martial Administrator and file it with the Registry.

• (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) Counsel of record who ceases to represent a party may make an application for an order declaring that they are no longer the party’s counsel of record. Counsel shall give notice of the application to each party and, if counsel for any party was appointed by the Director of Defence Counsel Services, to the Director of Defence Counsel Services.

• (7) Counsel shall serve the order referred to in subsection (6) on each party, the Court Martial Administrator and, if applicable, the Director of Defence Counsel Services.

• (8) The order takes effect when counsel files with the Registry proof that the order has been served in accordance with subsection (7).

Appointment of Counsel by the Director of Defence Counsel Services

• RULE 20 (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.

Fees and Costs

• RULE 21 (1) If a party other than the Minister is represented by counsel, the Court may direct that all or part of the counsel’s fees in relation to the appeal or application be paid, as assessed by an assessment officer in accordance with Tariff B of the Federal Courts Rules.

• (2) The Court may direct that all or part of the party’s costs in the Court in relation to the appeal or application be paid, as assessed by an assessment officer in accordance with Tariff A or B, as applicable, of the Federal Courts Rules.

• RULE 22 (1) An assessment under Rule 21 is subject to review if an application is made within 10 days after the day on which the assessment is made.

• (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

• RULE 23 (1) Unless otherwise ordered by a judge and subject to subsections (2), (5) and (7), service of a document on any of the following persons shall be effected by personal service, registered mail or courier to their address for service or by fax or email:

  • (a) an appellant or applicant;

  • (b) a respondent;

  • (c) the Attorney General of Canada or the attorney general of a province; and

  • (d) the Court Martial Administrator, the Director of Defence Counsel Services or the Minister.

• (2) A party who is self-represented shall not be served with a document by fax or email.

• (3) Counsel who is representing a party only for part of a proceeding may be served only with documents that pertain to a subject matter that is within the counsel’s mandate set out in the notice filed under subsection 19(3).

• (4) Except as otherwise ordered by a judge, service of a document on a party’s counsel of record is effected by

  • (a) leaving a copy of the document at the counsel’s business address or sending it by courier or registered mail to that address; or

  • (b) transmitting a copy of the document to the counsel by fax or email.

• (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) Service of a document in Quebec may also be proven by a certificate of a bailiff or other authorized person in accordance with Quebec’s Code of Civil Procedure.

• RULE 23.01 (1) A document that is served by fax shall be printed on paper measuring 21.5 cm by 28 cm.

• (2) A document that is more than 40 pages in length shall not be served by fax without the recipient’s prior consent.

• (3) A document that is served by fax shall have a cover page that sets out the following information:

  • (a) the name, address, telephone number and email address of the sender;

  • (b) the name of the counsel being served;

  • (c) the date and time of transmission; and

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

• (4) Despite subsection (3), the information referred to in paragraph (3)(b) is not required for a document that is being served on the Court Martial Administrator or the Director of Defence Counsel Services.