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

Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada 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)* and section 211.82** 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, 1979***, 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)* and section 211.82** 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, 1979***, and makes the annexed Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada, in substitution therefor. S.C. 1984, c. 40, s. 47 S.C. 1985, c. 26, s. 62 SOR/79-235, 1979 Canada Gazette Part II, p. 973 Ottawa, June 16, 1986 [Repealed, SOR/2022-253, s. 1] In these Rules, Act means the National Defence Act; (Loi) Administrator means the Chief Administrator appointed under section 5 of the Courts Administration Service Act, or a person acting on their behalf; (administrateur) 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 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 means a member of the bar of a province; (avocat) Court means the Court Martial Appeal Court of Canada; (Cour) Court Martial Administrator means the person appointed under section 165.18 of the Act; (administrateur de la cour martiale) holiday means a Saturday or any other day defined as a holiday in subsection 35(1) of the Interpretation Act; (jour férié) Judicial Administrator means the officer of the Registry so designated pursuant to Rule 39; (administrateur judiciaire) 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 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 means 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, all documents and records relevant to the appeal or application that were attached to the original minutes, 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 all documents and records relevant to any application under Division 3 or 10 of Part III of the Act; (Dossier) Registry[Repealed, SOR/2022-253, s. 2] 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[Revoked, SOR/92-152, s. 1] These Rules apply to all proceedings before the Court. 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. 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. A form that is required by these Rules may incorporate any variations that are necessary in the circumstances. 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. For each proceeding in which a hearing is to be held, the Chief Justice shall designate each judge that will sit at the hearing; and make an order fixing the date, time, place and manner of the hearing. A hearing shall be conducted, in whole or in part, in person, by telephone or by videoconference. The Court may give any directions that are necessary to facilitate the conduct of the hearing. The Registry shall send a copy of the order referred to in paragraph (1)(b) to the Court Martial Administrator and the parties. 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. 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. The document shall be legible; 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; be dated; have a cover page that sets out the Court file number, the style of cause and the document’s title; if there is more than one component to the document, have a table of contents; and 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. If the document is on paper, each page of the document shall be printed on good quality white or off-white paper measuring 21.5 cm by 28 cm; and in the case of a document other than a book of authorities, have top and bottom margins of not less than 2.5 cm and left and right margins of not less than 3.5 cm, be printed on one side of the paper only, and have no more than 30 lines, exclusive of headings. A memorandum of fact and law that is on paper shall have in the case of the appellant’s memorandum, a beige cover; in the case of the respondent’s memorandum, a green cover; and in the case of an intervener’s memorandum, a blue cover. 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). 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. 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. A file shall be opened by the Registry without delay upon receipt by the Registry of the first of the following documents: an application for review under section 159.9 of the Act that sets out the date of the direction to be reviewed; a Notice of Appeal that sets out the date of the decision appealed from; an application under section 248.2 of the Act for release until the determination of the appeal; an application for review under section 248.8 of the Act that sets out the date of the undertaking to be reviewed; an application under section 248.81 of the Act to address a breach or likely breach of an undertaking; and 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. 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. 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 notice of appearance in the form set out in Schedule 1; or 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. 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. 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). 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. 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). 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. 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. 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. 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. 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. 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. The appellant’s Memorandum of Fact and Law shall contain a concise statement of the facts of the case; the arguments the appellant proposes to make to the Court; appropriate references to the appeal book; and a list of the statutes, regulations and authorities on which the appellant intends to rely in their argument. The appellant may, in the Memorandum of Fact and Law, give notice of intention to argue grounds of appeal not contained in the Notice of Appeal; and abandon any grounds of appeal contained in the Notice of Appeal. 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. [Repealed, SOR/2001-91, s. 5] 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. 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. 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. 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. The respondent’s Memorandum of Fact and Law shall contain 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; the arguments the respondent proposes to make to the Court; a list of the statutes, regulations and authorities on which the respondent intends to rely in their argument. 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. The Memorandum in Reply shall, with any necessary modifications as the circumstances require, contain the information referred to in subsection 9(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. 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. 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. 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. 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. 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. 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. 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. A book of authorities that is on paper shall in the case of a joint book, have a burgundy cover; and in the case of a separate book, have a cover that is the same colour as the party’s Memorandum of Fact and Law. 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. 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. 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. 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: the reasons for which the person submits that the application for the review or appeal should succeed; his proposed place of residence if, upon release, he is not returned to duty; 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 a statement of service or criminal charges pending against him, whether in Canada or elsewhere, and the details thereof. An application which is not accompanied by the documents required by subsections (2) and (3) may be summarily dismissed. 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). 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. 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. 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. The Administrator shall inform the appellant without delay that the petition has been referred to the Court. 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. 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. After the appellant has filed proof of service under subsection (4), the procedure to be followed is that set out in Rule 13. 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. 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. 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. 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. 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, the particulars be furnished to him or her; and a copy of the particulars be filed with the Registry. 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). 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. 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. No extension may be made on consent of the parties in respect of a period fixed by an order of the Court. 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. A holiday shall not be included in the computation of a time limit that is less than six days. 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. 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. 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. 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. 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). 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. 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. 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. 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. 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. 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. The order takes effect when counsel files with the Registry proof that the order has been served in accordance with subsection (7). 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. An application under subsection (1) shall be supported by the party’s affidavit deposing to the pay, income, salary and allowances he was receiving 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 at the date of the application; his means other than those set out pursuant to paragraph (a); his current and probable future assets and liabilities; his marital status and number of dependants, if any; 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 any further facts upon which the appellant relies as justification for such approval. 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. 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. 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. 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. 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. 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. 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. 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: an appellant or applicant; a respondent; the Attorney General of Canada or the attorney general of a province; and the Court Martial Administrator, the Director of Defence Counsel Services or the Minister. A party who is self-represented shall not be served with a document by fax or email. 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). Except as otherwise ordered by a judge, service of a document on a party’s counsel of record is effected by leaving a copy of the document at the counsel’s business address or sending it by courier or registered mail to that address; or transmitting a copy of the document to the counsel by fax or email. 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. 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. 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. Service of a document shall be proven by an affidavit of service in the form set out in Schedule 8; 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 a certificate of service by the counsel who served the document, in the form set out in Schedule 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. A document that is served by fax shall be printed on paper measuring 21.5 cm by 28 cm. A document that is more than 40 pages in length shall not be served by fax without the recipient’s prior consent. A document that is served by fax shall have a cover page that sets out the following information: the name, address, telephone number and email address of the sender; the name of the counsel being served; the date and time of transmission; and the total number of pages transmitted, including the cover page. 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. 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). 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). 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. 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. A notice referred to in subsection (3) or (4) is effective beginning on the day on which it is filed with the Registry. 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. The email shall set out the following information: the title of the document that is being served; the name of the party being served and, if applicable, their counsel’s name; and the number of attachments and, for each attachment, its total number of pages. Subject to subsection (2), service of a document is effected if it is served by personal service, on the day on which the document is left with the person being served or their counsel; if it is served within Canada by registered mail, on the fifth day after the day on which it is mailed; if it is served outside of Canada by registered mail, on the seventh day after the day on which it is mailed; if it is served within Canada by courier, on the second day after the day on which the document is provided to the courier; if it is served outside Canada by courier, on the fourth day after the day on which the document is provided to the courier; if it is served by fax, on the day of transmission that is indicated on the transmission confirmation receipt; and if it is served by email, on the day on which it is sent. 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. 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. The appeal book referred to in subsection 6(5) shall not be filed with the Registry by electronic transmission. 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: the Record, appeal book, Memorandum of Fact and Law and Memorandum in Reply; and any other document that is longer than 20 pages. A document that is filed by fax shall include a cover page that sets out the following information: the date and time of transmission; the total number of pages transmitted, including the cover page; the number of the fax to which documents may be sent; and the name and telephone number of a person to contact in the event of a transmission problem. 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: the title of the document being filed; and the name, address, telephone number and email address of the sender. A party who files a document by electronic transmission shall 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 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. A document is not considered to have been filed until it is received by the Registry and dated by the Administrator. 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. 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. 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. 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. A party may attach to the Notice of Motion written representations and a request that the motion be heard orally. 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. 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. 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). 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. 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. 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. Subject to subsection (2), a party who is in custody is entitled, if he desires, to be present at the hearing of his appeal. A party who is in custody and who is represented by counsel is not entitled to be present at the hearing of the appeal, where the appeal is on a ground involving a question of law alone, or at any proceedings that are preliminary to or incidental to the appeal, unless the Chief Justice gives him leave to be present. 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). 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. An order made under subsection (4) shall 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 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. [Repealed, SOR/2001-91, s. 26] The Chief Justice or the Court may where the appellant is not ready to proceed with his appeal when called upon to do so, dismiss the appeal; where the respondent is not ready to proceed with an appeal when called upon to do so, order the appellant to proceed ex parte; upon cause shown, postpone the hearing of the appeal to another time; 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; extend or abridge any time limited by these Rules before or after the expiration of the time prescribed; and make any order that justice requires. 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. 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. 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. 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. The presiding judge may adjourn any sitting or hearing from time to time and place to place. 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, 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 the party has received the Court’s consent and directions. 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. 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. 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. 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. The order requiring a witness to attend at a hearing may require the production of documents by him. Every judgment and order shall be committed to writing, signed by the presiding judge, and filed. 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. When a judge gives reasons that are not the reasons of the Court, he shall commit them to writing, sign and file them. When there is a dissent to the Court’s decision, written reasons shall be given by both the majority and the dissenting judges. 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. 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. A copy of every document filed under this Rule shall be sent without delay to each party by the Registry. 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. A notice of abandonment under subsection (1) shall be signed 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 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. An appeal may be considered to have been abandoned for want of prosecution where 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; 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; 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 the appellant has failed to appear at the time and place fixed for the hearing. 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.

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. 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. 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. 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. The Administrator’s duties shall include receiving and filing all papers, documents and exhibits transmitted to him in connection with appeals; entering in an appropriate book provided for that purpose a list of appeals set down for hearing by the Court; 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; attending with all relevant records, exhibits and papers at sittings of the Court; 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; causing a transcript of all viva voce evidence to be taken by a qualified reporter; transmitting to the parties to an appeal, to the Judge Advocate General and to the Court Martial Administrator the judgment of the Court; 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; 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; 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 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. (Court File No.) COURT MARTIAL APPEAL COURT OF CANADA BETWEEN: (Name of Appellant or Applicant, as the case may be) Appellant or Applicant -and- (Name) Respondent NOTICE OF APPEARANCE The respondent intends to participate in this appeal. (Date) NOTICE OF CROSS-APPEAL THE RESPONDENT CROSS-APPEALS and asks that the order be set aside and judgment granted as follows (or “that the order be varied as follows”, or as the case may be): (Set out the relief sought.) THE GROUNDS OF CROSS-APPEAL are as follows: (Set out the grounds, including a reference to any statutory provision or rule to be relied on.) A Memorandum of Particulars shall have the following heading: MEMORANDUM OF PARTICULARS Information to be included, as applicable: the type, place and date of the proceedings before the court martial or hearing; the name, postal address and telephone number of the prosecutor; the name, postal address and telephone number of the defence counsel; the offence or offences charged; the statutory or other provisions on which the charge or charges are based; the plea at trial; the disposition by court martial or military judge; the date of the disposition; and the sentence imposed (and the sentence as modified, if applicable). Where the disposition under review or appeal is a disposition under Division 3 or 10 of Part III of the Act, attach a copy of any directions, orders and conditions and undertakings that are separate from the disposition referred to in paragraph 2(g). When the disposition has resulted in the detention of the person charged, include the name, postal address and telephone number of the institution where the person is being held; and the name and title of the warden, the superintendent or, as the case may be, the person in charge or command of the institution. Any appeal book shall be prepared on white paper of good quality in such manner that printed pages are to the left as the book is read. The type used in an appeal book shall be 12 point unless accounts or tabular matter is being printed, in which case 10 point type shall be used and shall be clearly legible. [Repealed, SOR/2001-91, s. 37] The size of an appeal book shall be 21.5 cm by 28. There shall be approximately 47 lines of print on each page of an appeal book and every tenth line shall be numbered in the margin. An appeal book shall be arranged in the following sequence and shall consist of a red-coloured cover, a title page, an index and the following parts: Every page of an appeal book other than the title page and facsimile reproduced exhibits shall have a heading that states the nature of the material. Where evidence is printed in an appeal book, the questions shall be preceded by the letter “Q”, and the answer, which shall continue on the line which the question concludes, shall be preceded by the letter “A”, if in English, or the letter “R”, if in French. All printed or written documents filed as exhibits shall be grouped together and printed in an appeal book in the order in which they were filed at the court martial. If the whole case requires two or more volumes of an appeal book, to facilitate reference to the exhibits, they may all be reproduced in the final volume or volumes of the appeal book and on the cover after the volume number shall appear the word “Exhibits” in bold letters. When exhibits are reproduced in a special volume of an appeal book, the page numbers shall be the same as though printed in the usual manner. The cover and title page of an appeal book shall have the following heading: APPEAL BOOK Where an appeal book contains more than 300 pages, it shall be bound in separate volumes of not more than 200 pages each. The index of an appeal book shall set out in detail the entire contents in four parts as follows: The pages of the index of an appeal book shall be numbered with small Roman numerals and the remaining pages shall be numbered in the usual manner with the numbers placed in the upper left-hand corner. Nothing shall appear above the page number. REQUISITION FOR HEARING THE APPELLANT (or RESPONDENT, as the case may be) REQUESTS that a date be set for the hearing of this appeal. THE APPELLANT (or RESPONDENT, as the case may be) CONFIRMS THAT: The requirements of Rules 7, 9 and 10 of the Court Martial Appeal Court Rules have been complied with. A notice of constitutional question has been served in accordance with Rule 11.1 of these Rules. (or) There is no requirement to serve a notice of constitutional question under Rule 11.1 of these Rules in this appeal. The hearing should be held at (place). The hearing should last no longer than (number) hours (or days). The representatives of all parties to the appeal are as follows: on behalf of the appellant: (name of counsel or party if self-represented) who can be reached at: (address and telephone and fax numbers); on behalf of the respondent: (name of counsel or party if self-represented) who can be reached at: (address and telephone and fax numbers); on behalf of the intervener: (name of counsel or party if self-represented) who can be reached at: (address and telephone and fax numbers). (If more than one appellant, respondent or intervener represented by different counsel, list all counsel.) The parties are available at any time except: (List all dates within 90 days after the date of this requisition on which the parties are not available for a hearing). The hearing will be in (English or French, or partly in English and partly in French). The appellant (or respondent or the parties, as the case may be) require(s) an interpreter to translate the proceedings into (English or French or both) NOTICE OF CONSTITUTIONAL QUESTION THE (identify party) intends to question the constitutional validity, applicability or effect (state which) of (identify the particular legislative provision); (If the date of the start of the hearing has been fixed) THE QUESTION is to be argued on (day), (date) at (time), at (place); THE FOLLOWING are the material facts giving rise to the constitutional question: (Set out concisely the material facts that relate to the constitutional question. Where appropriate, attach pleadings or reasons for decision.); THE FOLLOWING is the legal basis for the constitutional question: (Set out concisely the legal basis for each constitutional question and identify the nature of the constitutional principles to be argued.); IF YOU WISH to be heard in respect of the constitutional question, you are required to file with the Registry, at least five days before the date set for the start of the hearing of the appeal, a notice of intention to intervene. NOTICE OF MOTION TAKE NOTICE THAT the Court will be moved by (the Appellant or Applicant or Respondent, as the case may be) for an order (Here set out order sought.); AND FURTHER TAKE NOTICE THAT the order should be made because: (Where the party seeks to obtain or terminate a release from pre-trial custody or pending an appeal, or to vary the conditions of such release, the party should, and in other applications may, here set out in convenient paragraphs, designated (a), (b), (c), etc., concisely and precisely, the grounds or reasons why the order sought should be made.) AND FURTHER TAKE NOTICE THAT in support of this application, the party will rely on the affidavit(s) of (state name(s) of affiant(s)), date filed, together with such further material as counsel for the party may advise and the Court may permit. (Name of Respondent) The (appellant, applicant or respondent, as the case may be) has appointed (name) as counsel to provide limited-scope representation in this proceeding. COUNSEL’S MANDATE Counsel’s representation of the (appellant, applicant or respondent, as the case may be) is limited to the following aspects of the proceeding: (Set out the scope of the mandate, including the subject matter and any scheduled appearances.) DESIGNATION FOR SERVICE OF DOCUMENTS □ SERVICE ON COUNSEL (Service of documents related to counsel’s mandate is to be made on counsel.) Address for service: (If service is to be made on counsel.) □ SERVICE ON PARTY (Service of documents related to counsel’s mandate is to be made on the appellant, applicant or respondent, as the case may be.) DECLARATIONS The undersigned counsel and the (appellant, applicant or respondent, as the case may be) each declare that this notice accurately describes the counsel’s mandate and the arrangements for the service of documents related to that mandate. TO: (Name, address and email address of other counsel or parties) TAKE NOTICE THAT I, (name of counsel), counsel, am no longer providing (name of party) with limited-scope representation and I have ceased to represent them. The (appellant, applicant or respondent, as the case may be) consents to the service of documents by email in this proceeding. Service of documents by email shall be made to the following email address: (Set out email address.) The (appellant, applicant or respondent, as the case may be) withdraws the consent to the service of documents by email in this proceeding given in the Notice of Consent to Service by Email dated (date of notice). I, (full name and occupation of deponent), of the (City, Town, etc.) of (name), in the (County, Regional Municipality, etc.) of (name), SWEAR (or AFFIRM) THAT: (Choose one of the following to include in the body of the affidavit.) [In the case of personal service] On (date), at (time), I served (identify person served) with (identify the document served) by leaving a copy with that person at (address where service was made). I was able to identify the person by means of (State the means by which the person’s identity was ascertained.). [In the case of service by registered mail or courier] On (date), at (time), I served (identify person served) with (identify document served) by sending a copy by (state registered mail or name of courier) to (full address of place of delivery). [For service by fax] On (date), at (time), I served (identify person served) with (identify document served) by sending a copy by fax to (fax number). [For service by email] On (date), at (time), I served (identify person served) with (identify document served) by sending a copy by email to (email address). [For service by leaving document with counsel] On (date), at (time), I served (identify party served) with (identify document served) by leaving a copy at the office of (name of counsel), counsel for the (identify party). I, (name of counsel), counsel, certify that I caused (the appellant, applicant or respondent, as the case may be) (name of party served) to be served with (if enclosure, “this document”; otherwise identify document served) by (method of service and name of any person served on behalf of the party) on (date of service).