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

• RULE 23.02 (1) A party shall not be served with documents by email unless they have given consent for service by email in accordance with subsection (3) or after they withdraw that consent in accordance with subsection (4).

• (2) The Court Martial Administrator and counsel appointed by either the Director of Military Prosecutions or the Director of Defence Counsel Services are deemed to have given consent to service by email. However, that consent may be withdrawn in accordance with subsection (4).

• (3) A party consents to the service of documents by email by filing with the Registry a notice of consent to service by email, in the form set out in Schedule 7.3.

• (4) A party withdraws their consent to service of documents by email by filing with the Registry a notice of withdrawal of consent to service by email, in the form set out in Schedule 7.4.

• (5) A notice referred to in subsection (3) or (4) is effective beginning on the day on which it is filed with the Registry.

• RULE 23.03 (1) Unless otherwise ordered by the Court, a document that is served by email 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.

• (2) The email shall set out the following information:

  • (a) the title of the document that is being served;

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

  • (c) the name of the party being served and, if applicable, their counsel’s name; and

  • (d) the number of attachments and, for each attachment, its total number of pages.

• RULE 23.04 (1) Subject to subsection (2), service of a document is effected

  • (a) if it is served by personal service, on the day on which the document is left with the person being served or their counsel;

  • (b) if it is served within Canada by registered mail, on the fifth day after the day on which it is mailed;

  • (c) if it is served outside of Canada by registered mail, on the seventh day after the day on which it is mailed;

  • (d) if it is served within Canada by courier, on the second day after the day on which the document is provided to the courier;

  • (e) if it is served outside Canada by courier, on the fourth day after the day on which the document is provided to the courier;

  • (f) if it is served by fax, on the day of transmission that is indicated on the transmission confirmation receipt; and

  • (g) if it is served by email, on the day on which it is sent.

• (2) Except for a document that is served by personal service, if a document is served on a holiday or after 5:00 p.m. local time at the recipient’s location, service of the document is effected on the next day that is not a holiday.

Filing of Documents

• RULE 23.1 (1) Subject to subsections (2) and (3), documents shall be filed, with the Registry’s principal office in Ottawa or with any other Registry office that is established by the Administrator, in person or by registered mail, courier, fax or electronic transmission.

• (2) The appeal book referred to in subsection 6(5) shall not be filed with the Registry by electronic transmission.

• (3) The following documents may not be filed by fax without the consent of the Administrator, which consent may be given where filing by fax is required in order to allow a case to proceed expeditiously:

  • (a) the Record, appeal book, Memorandum of Fact and Law and Memorandum in Reply; and

  • (b) any other document that is longer than 20 pages.

• (4) A document that is filed by fax shall include a cover page that sets out the following information:

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

  • (b) the date and time of transmission;

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

  • (d) the number of the fax to which documents may be sent; and

  • (e) the name and telephone number of a person to contact in the event of a transmission problem.

• (4.1) A document that is filed by electronic transmission 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 the document shall be accompanied by the following information:

  • (a) the title of the document being filed; and

  • (b) the name, address, telephone number and email address of the sender.

• (4.2) A party who files a document by electronic transmission shall

  • (a) provide a paper copy of the document in person, by registered mail or by courier to the Registry within five days after the day on which the document is filed; and

  • (b) if required by the Court, provide the Registry with the same number of paper copies of the document as would have been required had the document been filed in paper copy.

• (5) A document is not considered to have been filed until it is received by the Registry and dated by the Administrator.

• (5.1) Before dating a document under subsection (5), the Administrator shall verify whether the document is in the form required by these Rules. If the document is not in the required form, the Administrator shall, without delay, refer the document to a judge for directions.

• (6) All documents that are required to be served, other than the appeal book and the documents referred to in subsections 5(1) and 23(5), must be filed with proof of service in the form and within the times set out in these Rules.

Applications, Motions and Notices

• RULE 24 (1) Where any application is authorized to be made to the Court, the Chief Justice, or a judge of the Court, it shall be made by motion.

• (2) A motion shall be made by serving and filing a Notice of Motion in the form set out in Schedule 7 and shall be supported by an affidavit that sets out all the facts on which it is based that do not appear on the record.

• (3) A party may attach to the Notice of Motion written representations and a request that the motion be heard orally.

• (3.1) Any other party may serve on the other parties and file with the Registry a consent to the motion or, if the party opposes the motion, an affidavit and written representations in reply within 15 days after being served with a Notice of Motion. At the same time that the affidavit and written representations in reply are filed, the party may, in the reply or in a separate document, serve and file a request to have the motion heard orally.

• (4) Any person making an affidavit that has been filed by a party may be required, on application of another party, to appear before a judge or a registry officer designated by the Chief Justice, to be cross-examined thereon, and a transcript thereof may be filed with the Registry by the cross-examining party.

• RULE 25 (1) Subject to subsection (2), every application, other than an application referred to in subsection 12(1) or a petition referred to in subsection 13.1(1), shall be disposed of without the personal appearance of the parties on the basis of the written and signed consent of the parties or, if any, the affidavit and written representations that are referred to in subsection 24(2), (3) or (3.1).

• (2) If it is considered just in the circumstances, the Chief Justice on the Chief Justice’s own motion or on request made under subsection 24(3) or (3.1), may direct that the application be disposed of on the personal appearance of the parties.

• RULE 26 (1) The Chief Justice shall, by order, fix the time, date and place for the oral hearing of every motion to be so heard and shall designate the judge or judges to hear the same.

• (2) A party who desires to make representations in writing, without personal appearance, in respect of an application by another party which is to be heard orally, may do so by filing a copy thereof with the Registry and serving a copy on each other party not less than two days before the date fixed for the hearing of the motion.

Application by Party Under Custody to Attend Hearing

• RULE 27 (1) Subject to subsection (2), a party who is in custody is entitled, if he desires, to be present at the hearing of his appeal.

• (2) A party who is in custody and who is represented by counsel is not entitled to be present

  • (a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone, or

  • (b) at any proceedings that are preliminary to or incidental to the appeal,

  unless the Chief Justice gives him leave to be present.

• (3) A party who is in custody and desires to be present at the hearing of the appeal, or at any proceedings preliminary or incidental thereto, shall make application for an order under subsection (4).

• (4) Where the party is entitled to be present at the hearing of the appeal, or is granted leave to be present at it or at any proceedings preliminary or incidental thereto, the Chief Justice may order that the party be brought before the Court from day to day as may be necessary.

• (5) An order made under subsection (4) shall

  • (a) when the party is a service convict, service prisoner or service detainee, be addressed to a committing authority prescribed or appointed pursuant to subsection 219(1) of the Act and, on receipt of it, that committing authority shall cause the party to be temporarily removed from the place to which the party has been committed for such period as may be specified in the order, and brought before the Court; and

  • (b) when the party is not a service convict, service prisoner or service detainee, be addressed to the person who has custody of the party and, on receipt thereof, that person shall deliver the party to any person who is named in the order to receive him, or bring him before the Court upon such terms and conditions as the Chief Justice may prescribe.

• (6) [Repealed, SOR/2001-91, s. 26]

Special Dispositions

• RULE 28 (1) The Chief Justice or the Court may

  • (a) where the appellant is not ready to proceed with his appeal when called upon to do so, dismiss the appeal;

  • (b) where the respondent is not ready to proceed with an appeal when called upon to do so, order the appellant to proceed ex parte;

  • (c) upon cause shown, postpone the hearing of the appeal to another time;

  • (d) upon motion, or without motion on its own initiative, dismiss an appeal where the appellant has failed to observe, without dispensation, any requirement of the Act or these Rules;

  • (e) extend or abridge any time limited by these Rules before or after the expiration of the time prescribed; and

  • (f) make any order that justice requires.

• (2) Notwithstanding subsection (1), no order or judgment the effect of which is to dispose finally of an appeal, including an appeal under section 248.9 of the Act, shall be made, except by the Court.

• (3) When, in his opinion, there is a significant issue of law involved in the disposition of any matter which, by the Rules, is required to be disposed of by him, the Chief Justice may refer the matter to the Court for disposition or may state a case for its opinion.

Practice and Procedures at Hearings

RULE 29 On the hearing of an appeal no ground of appeal other than those set out in the Notice of Motion, the Notice of Appeal or in the Memorandum of Fact and Law may be argued, except by leave of the Court, and, save in exceptional cases, leave shall not be granted unless reasonable notice of the additional grounds has been given by the appellant to the respondent.