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

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.

RULE 30 On the hearing of an appeal, unless the Court otherwise directs, the arguments of the appellant shall be heard first and the appellant shall have the right to reply to the respondent’s arguments, if any.

RULE 31 The presiding judge may adjourn any sitting or hearing from time to time and place to place.

Witnesses and New Evidence

• RULE 32 (1) A party shall not present new evidence at the hearing of an appeal unless, before the order referred to in paragraph 4.1(1)(b) is made,

  • (a) the party has made an application to the Court in accordance with Rule 24 for the Court’s consent and directions respecting the presentation of the new evidence; and

  • (b) the party has received the Court’s consent and directions.

• (2) By leave of the Court or a judge, for special reason, a witness may be called to testify in relation to an issue of fact raised on an application.

• (3) A witness appearing at a hearing shall be required to give his evidence under oath or solemn affirmation in the form prescribed for use in the case of a court martial.

RULE 33 Any witness who gives evidence before the Court shall, unless the Court otherwise directs if it is considered just in the circumstances and subject to any statutory authorization for payment from time to time, be entitled to the witness’s expenses in accordance with the applicable tariff of the Federal Courts Rules.

• RULE 34 (1) The attendance of a witness at a hearing may be required by order of the Court or a judge, but no person shall be held in contempt in respect of the order unless a certified copy of it had been served on the person at least two days before the person’s attendance was required and there had, at the time of service, been paid or tendered to the person an amount sufficient for witness fees and travelling expenses in accordance with the applicable tariff of the Federal Courts Rules.

• (2) The order requiring a witness to attend at a hearing may require the production of documents by him.

Judgments and Orders

• RULE 35 (1) Every judgment and order shall be committed to writing, signed by the presiding judge, and filed.

• (2) When reasons for judgment are given in open court or when reasons for an order are given, they shall be committed to writing, signed by the judge who gave them and filed.

• (3) When a judge gives reasons that are not the reasons of the Court, he shall commit them to writing, sign and file them.

• (4) When there is a dissent to the Court’s decision, written reasons shall be given by both the majority and the dissenting judges.

• (4.1) Where a dissent to the Court’s decision is based in whole or in part on a question of law, the grounds for the dissent shall be specified in the judgment issued by the Court.

• (5) When judgment is reserved, written reasons for judgment shall be given and, unless subsection (4) applies, all the judges shall indicate, in writing, their concurrence in whole or in part or in the result by an appropriate endorsement on the reasons or by separate reasons.

• (6) A copy of every document filed under this Rule shall be sent without delay to each party by the Registry.

Abandonment of Proceedings

• RULE 36 (1) A party may abandon a proceeding begun by the party at any time by notice filed with the Registry and served on the respondent and the Court Martial Administrator.

• (2) A notice of abandonment under subsection (1) shall be signed

  • (a) by the party and a witness to the party’s signature and be supported by an affidavit or other evidence of the witness as to the signature of the party; or

  • (b) where the appellant is represented by counsel, by such counsel, who shall state in the notice that he has consulted his client and is authorized by his client to abandon the proceeding.

RULE 37 An appeal may be considered to have been abandoned for want of prosecution where

• (a) the Notice of Appeal does not, in the opinion of the Court, contain sufficient particulars of the grounds upon which it is founded and the appellant has failed, within a reasonable time, to comply with an order requiring the furnishing of such particulars;

• (b) the appellant has failed to include an address for service in the Notice of Appeal or, if the Notice of Appeal is not signed by counsel, counsel named to accept service refuses to do so;

• (c) the respondent has reason to believe that the appellant intends to abandon the appeal and files an affidavit deposing to that reason in the Registry and the appellant fails, within reasonable time, to respond to a request by the Registry for an expression of intention as to the abandonment or otherwise of the appeal; or

• (d) the appellant has failed to appear at the time and place fixed for the hearing.

Seal

• RULE 38 (1) The seal of the Court shall be of a design approved by the Chief Justice and shall be kept by the Administrator at the Registry at Ottawa.

• (2) If the Chief Justice so directs, there may be one or more facsimiles of the seal to be kept at offices of the Registry elsewhere than Ottawa and to be used by registry officers on duty with the Court or a judge where there is no office of the Registry.

Judicial Administrator

• RULE 39 (1) The Chief Justice may, by order, designate an officer of the Registry as Judicial Administrator and may revoke such designation at any time. The designation of a Judicial Administrator shall be automatically revoked when the Chief Justice by whom it was made ceases to hold office as such.

• (2) The Judicial Administrator shall perform such part of the non-judicial work of the Chief Justice as the latter may delegate and an order signed by the Judicial Administrator in respect of a matter delegated shall be deemed to be an order of the Chief Justice.

Duties of the Administrator

• RULE 40 (1) The Administrator shall perform the duties required of him under these Rules or assigned to him from time to time by the Chief Justice or the Court and, in accordance with such directions as may from time to time be given by the Chief Justice or the Court, establish the duties to be performed by persons employed in the Registry.

• (2) The Administrator’s duties shall include

  • (a) receiving and filing all papers, documents and exhibits transmitted to him in connection with appeals;

  • (b) entering in an appropriate book provided for that purpose a list of appeals set down for hearing by the Court;

  • (c) transmitting to each judge by whom an appeal is to be heard, a copy of the memoranda of fact and law and the appeal book relating to that appeal;

  • (d) attending with all relevant records, exhibits and papers at sittings of the Court;

  • (e) keeping a full and correct record of all proceedings before the Court, showing the names of the judges of the Court present, the date and place, the names of counsel, the result of the appeal, the judgment given and the time occupied by the hearing;

  • (f) causing a transcript of all viva voce evidence to be taken by a qualified reporter;

  • (g) transmitting to the parties to an appeal, to the Judge Advocate General and to the Court Martial Administrator the judgment of the Court;

  • (g.1) transmitting to the parties to a proceeding, the Court Martial Administrator and the Judge Advocate General any order disposing of an application made under Division 3 or 10 of Part III of the Act;

  • (h) subject to paragraph (j), returning to the Court Martial Administrator the original minutes of the proceedings of the court martial or hearing under Division 3 or 10 of Part III of the Act;

  • (i) subject to paragraph (h), retaining possession of all papers, documents and exhibits in respect of an appeal, unless otherwise required by the Chief Justice; and

  • (j) where an appeal has been taken to the Supreme Court of Canada, transmitting to it all papers, documents and exhibits in his possession required by that Court.