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

• RULE 6.1 (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.

Appellant’s Memorandum of Fact and Law

• RULE 7 (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• (5) [Repealed, SOR/2001-91, s. 5]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

• RULE 8 (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.

Respondent’s Memorandum of Fact and Law

• RULE 9 (1) Within 30 days after the day on which the respondent is served with the appellant’s Memorandum of Fact and Law, the respondent shall serve a copy of their Memorandum of Fact and Law on the appellant and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

• (2) The respondent’s Memorandum of Fact and Law shall contain

  • (a) a statement in respect of the appellant’s statement of facts indicating those accepted as correct and those not so accepted and giving a concise statement of any additional facts the respondent considers material to the appeal;

  • (b) the arguments the respondent 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 respondent intends to rely in their argument.

Memorandum in Reply

• RULE 10 (1) If the respondent has served a notice of cross-appeal and has, in their Memorandum of Fact and Law, advanced arguments in support of varying the decision under appeal, the appellant shall, within 30 days after the day on which they are served with the respondent’s Memorandum of Fact and Law, serve a copy of the appellant’s Memorandum in Reply on the respondent and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

• (1.1) The Memorandum in Reply shall, with any necessary modifications as the circumstances require, contain the information referred to in subsection 9(2).

• (2) Except as provided by subsection (1), no Memorandum in Reply shall be filed without leave of a judge applied for within 10 days after the date of service of the respondent’s Memorandum of Fact and Law.

Request for Hearing

• RULE 11 (1) Within 20 days after being served with the respondent’s Memorandum of Fact and Law or having served the appellant’s Memorandum in Reply, as the case may be, the appellant shall serve and file a requisition for hearing in the form set out in Schedule 5 requesting that a date be set for the hearing of the appeal.

• (2) If the appellant does not file a requisition for hearing, the respondent may, within 20 days after the day on which the period referred to in subsection (1) ends, serve and file a requisition for hearing in the form referred to in that subsection.

Constitutional Questions

• RULE 11.1 (1) Where a question in respect of the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province or of regulations under it is put in issue in an appeal, argument shall not be heard on that question nor shall the question be dealt with by the Court on disposition of the appeal unless subsection (2) has been complied with.

• (2) The party who has put a constitutional question in issue in an appeal shall serve notice of it, in the form set out in Schedule 6, on the Attorney General of Canada and on the attorney general of each province, and shall file proof with the Registry of the service of the notice at least 10 days before the date set for the beginning of the hearing of the appeal.

• (3) An attorney general who wishes to be heard on a constitutional question that is put in issue in an appeal shall, at least five days before the date set for the commencement of the hearing of the appeal, file with the Registry a notice of intention to intervene.

Book of Authorities

• RULE 11.2 (1) The parties shall file one electronic copy, or five paper copies, of a joint book of authorities that contains the statutes, regulations and authorities on which the parties intend to rely. However, if the parties cannot agree on a joint book, each party shall file a separate book that does not reproduce any of the documents included in any other party’s book.

• (2) The joint book or the separate books, as the case may be, shall be filed no later than 30 days before the day on which the hearing is scheduled to begin.

• (3) A book of authorities that is on paper shall

  • (a) in the case of a joint book, have a burgundy cover; and

  • (b) in the case of a separate book, have a cover that is the same colour as the party’s Memorandum of Fact and Law.

Release from Pre-trial Custody and Release Pending Appeal

• RULE 12 (1) All applications to the Court or to a judge of the Court under Division 3 or 10 of Part III of the Act, including appeals under section 248.9 of the Act, shall be made by motion under Rule 24 and shall, subject to subsection (1.1), be dealt with on the personal appearance of the parties.

• (1.1) The applicant may request that the application be dealt with on the basis of written representations by the parties without the personal appearance of the parties and must request that it be dealt with in that manner if the order sought is proposed to be made on consent.

• (2) Every Notice of Motion filed under this Rule shall be in the form set out in Schedule 7 and shall contain or be accompanied by a Memorandum of Particulars, prepared in accordance with Schedule 3.

• (3) In the case of an application for release by a person in pre-trial custody or sentenced to a period of detention or imprisonment, the application shall be supported by the applicant’s affidavit stating, in addition to other facts upon which the person may wish to rely, the following:

  • (a) the reasons for which the person submits that the application for the review or appeal should succeed;

  • (b) his proposed place of residence if, upon release, he is not returned to duty;

  • (c) his record of criminal and service offences, including all offences of which he has been convicted by a service tribunal, civil court or court of a foreign state, with the date and place of each conviction and the sentence imposed; and

  • (d) a statement of service or criminal charges pending against him, whether in Canada or elsewhere, and the details thereof.

• (4) An application which is not accompanied by the documents required by subsections (2) and (3) may be summarily dismissed.

• (5) An application referred to in subsection (1) by an applicant in custody and not represented by counsel is deemed to include an application under subsection 27(3) unless the applicant requests that it be dealt with in accordance with subsection (1.1).

• RULE 13 (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.

Petition for New Trial

• RULE 13.1 (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.

Production of Documents and Particulars

• RULE 14 (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.

RULE 15 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.