Vol. 134, No. 49 — December 2, 2000

Rules Amending the Court Martial Appeal Rules

Statutory Authority

National Defence Act

Sponsoring Agency

Court Martial Appeal Court of Canada

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The proposed amendments will bring the Court Martial Appeal Rules (CMAR) in line with the military justice legislative scheme established in the National Defence Act as amended by An Act to amend the National Defence Act and to make consequential amendments to other Acts (S.C. 1998, c. 35) [NDA]. The proposed amendments to the CMAR also reflect the evolution in Canadian courts towards more efficient case management in order to make the administration of justice more efficient and to avoid unnecessary delays.

The amended CMAR will reflect NDA amendments that more clearly define the roles and responsibilities of the Judge Advocate General (JAG) and other key players within the military justice system, in particular the Court Martial Administrator (CMA) and the Director of Defence Counsel Services (DDCS). The proposed amendments to the CMAR will transfer the responsibility for forwarding the Court Martial record and the preparation of the appeal book and the Memorandum of Particulars to the CMA. The JAG will continue to receive final decisions of the Court Martial Appeal Court (CMAC), including notices of abandonment of proceedings, to facilitate the JAG's statutory obligation to superintend the administration of military justice. The proposed amendments to the CMAR require the DDCS rather than the Minister of Justice, to appoint counsel for an unrepresented party when the Chief Justice has authorized such an appointment.

The proposed amendments to the CMAR set out the rules for filing before the CMAC in relation to two new proceedings created under the NDA amendments. Firstly, a party may file an application for review of any direction of a military judge relating to pre-trial custody. Secondly, the Minister of National Defence may refer a Petition for a new trial, based on new evidence, to the CMAC for determination.

The proposed amendments to the CMAR will also implement new case management measures. For example, on consent of the parties in writing, the CMA will not be required to forward any part of the record that is not relevant to any issue in a proceeding. Specific time limits for the service and filing of documents, including the transmittal of the record and appeal book, will be provided to expedite proceedings. In addition, the parties will only be able to extend the prescribed time limits once on consent and in most cases all subsequent extensions will require formal application to the CMAC. This will greatly limit unrestricted extensions on consent of the parties.

The Memorandum of Fact and Law and the Memorandum in Reply will be restricted to 30 and 10 pages in length, respectively. The parties will be allowed to file other documents by facsimile, if they are shorter than 20 pages in length. The form of documents will be standardized and new schedules of documents will be added to the CMAR such as the Notice of Appearance, Notice of Cross-Appeal, Requisition for Hearing, Affidavit of Service and the Counsel's Certificate of Service.

The proposed changes to the CMAR provide that the appellant, instead of the Registry of the CMAC, will be responsible to serve the notice of appeal or other instituting document upon the CMA. The appellant will be required to file the Memorandum of Fact and Law within 30 days after being served with the appeal book by the CMA and file a Requisition for Hearing within 20 days after being served with the respondent's Memorandum of Fact and Law.

The amendments to the CMAR will formalize the requirement that a dissenting opinion in a CMAC decision based in whole or in part on a ground of law be specified in the judgement. This will assist the Supreme Court of Canada on appeals from the CMAC and harmonize the procedure on such appeals with that of appeals under the Criminal Code.

The amendments to the CMAR will clarify when the CMAC may direct that all or any of the party's costs in the Court in relation to the appeal or application be paid.

Alternatives

Since its inception, the provisions of the CMAR have been set out in statute or regulations. Without a change to the enabling legislation, there is no alternative to the regulatory route.

Benefits and Costs

These proposed Regulations relate exclusively to the procedure and case management process in the CMAC. The amendments to the CMAR involve no current or future expenditures of funds.

The amendments to the CMAR will implement those amendments to the NDA that provide for access to the CMAC by a person in pre-trial custody or a petitioner seeking a new trial following a referral by the Minister of National Defence. The CMAC's new functions will ensure independent oversight in these matters, which will benefit the parties and the military justice system. The amendments will also give effect to amendments to the NDA that provide for greater transparency and independence within the military justice system by recognizing the clearly defined roles and responsibilities of the key players such as the JAG, the CMA and the Director of Defence Counsel Services, respectively.

The amendments will benefit litigants and the public by establishing case management practices, such as specific time limits to file documents by the parties, which will expedite the process governing proceedings and lead to an earlier hearing date and decision by the CMAC. Other benefits include the provision for a reduced record and appeal book with the agreement of the parties, the filing of various documents by facsimile and the availability of new schedules of documents for use by the parties.

Consultation

The CMAC has consulted with officials from the Department of National Defence and the Canadian Forces including the JAG, Director of Military Prosecutions and Director of Defence Counsel Services in the preparation of the CMAR.

The Registry of the CMAC will be mailing copies of the proposed amendments to the CMAR to legal counsel who have appeared before the CMAC in the past five years. Their comments will be solicited in order to consider suggested improvements to the proposed amendments to the CMAR.

Compliance and Enforcement

The normal compliance and enforcement mechanisms of the CMAC will apply.

Contact

Robert Biljan, Administrator, Court Martial Appeal Court of Canada, Ottawa, Ontario K1A 0H9, (613) 995-6719.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Chief Justice, pursuant to subsection 244(1)(see footnote a) and section 248.82(see footnote b)of the National Defence Act, proposes to make the annexed Rules Amending the Court Martial Appeal Rules.

Any interested person may make representations in writing concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must be addressed to the Administrator, Court Martial Appeal Court of Canada, Ottawa, Ontario, K1A 0H9 and cite the Canada Gazette, Part I, and the date of this notice.

November 23, 2000

ROBERT BILJAN
Administrator

RULES AMENDING THE COURT MARTIAL APPEAL RULES

AMENDMENTS

1. The long title of the French version of the Court Martial Appeal Rules(see footnote 1) is replaced by the following:

RÈGLES DE PRATIQUE ET DE PROCÉDURE DE LA COUR D'APPEL DE LA COUR MARTIALE DU CANADA

2. Rule 1 of the Rules is replaced by the following:

RULE 1. These Rules may be cited as the Court Martial Appeal Court Rules.

3. (1) The definitions "appellant"(see footnote 2), "applicant", "holiday" and "Minister"(see footnote 3) in Rule 2 of the Rules are replaced by the following:

"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)

"holiday" has the same meaning as in subsection 35(1) of the Interpretation Act; (jour férié)

"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)

(2) The definition "Cour" in Rule 2 of the French version of the Rules is replaced by the following:

" Cour " La Cour d'appel de la cour martiale du Canada. (Court)

(3) Rule 2 of the Rules is amended by adding the following in alphabetical order:

"Court Martial Administrator" means the person appointed under section 165.18 of the Act; (administrateur de la cour martiale)

"Record" means

4. Rules 4 to 6 (see footnote 4) of the Rules are replaced by the following:

RULE 4. 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.

Schedule of Hearings

RULE 4.1 (1) The Chief Justice shall designate the judge or judges to hear an appeal or other proceeding and shall, by order, fix the time and place of the hearing.

(2) The Registry shall send a copy of the order to the Court Martial Administrator and the parties.

(3) 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.

Form of Documents

RULE 4.2 (1) 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.

(2) The document shall be printed, typewritten or reproduced legibly, on good quality white or off-white paper measuring 21.5 cm by 28 cm,

(3) The first page of the document shall have a heading that sets out

(4) The document shall be dated and contain

(5) 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.

(6) 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.

Commencement of Proceedings

RULE 5. (1) A file shall be opened by the Registry without delay upon receipt by the Registry of the first of the following documents:

(2) 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.

(3) 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,

(4) 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.

(5) 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).

Obligations of the Court Martial Administrator

RULE 6. (1) Within 30 days after being served with a Notice of Appeal under section 232 of the Act, 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.

(2) Subject to subsections (3), (4) and 6.1(1), and within 90 days after being served with a document referred to in subsection 5(1), or the documents in respect of an application for a new trial that are referred to in subsection 13.1(3), the Court Martial Administrator shall cause the Record to be forwarded to the Registry.

(3) 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.

(4) 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.

(5) The Court Martial Administrator shall, at the same time as the Court Martial Administrator causes the Record to be forwarded to the Registry, file with the Registry five copies of the appeal book, prepared and certified in accordance with Schedule 4, and serve a copy of it on the parties and file proof of service with the Registry within 10 days after serving the appeal book.

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.

5. (1) Subsection 7(1) (see footnote 5) of the Rules is replaced by the following:

RULE 7. (1) Within 30 days after being served with the appeal book, the appellant shall serve a copy of the appellant's Memorandum of Fact and Law on the respondent and file five copies of it with the Registry.

(2) Paragraph 7(2)(c) (see footnote 6) of the Rules is replaced by the following:

(c) appropriate references to the appeal book; and

(3) Paragraphs 7(3)(a) (see footnote 7) and (b) (see footnote 8) of the French version of the Rules are replaced by the following:

(4) Subsection 7(4) (see footnote 9) of the French version of the Rules is replaced by the following:

(4) Les nouveaux moyens que l'appelant entend soumettre doivent être clairement indiqués et énoncés dans l'exposé des faits et du droit.

(5) Subsection 7(5) (see footnote 10) of the Rules is repealed.

6. (1) Subsection 9(1) (see footnote 11) of the Rules is replaced by the following:

RULE 9. (1) Within 30 days after being served with the appellant's Memorandum of Fact and Law, the respondent shall serve a copy of the respondent's Memorandum of Fact and Law on the appellant and file five copies of it with the Registry.

(2) Paragraph 9(2)(c) (see footnote 12) of the Rules is replaced by the following:

(c) appropriate references to the appeal book; and

7. Subsection 10(1) (see footnote 13) of the Rules is replaced by the following:

RULE 10. (1) Where the respondent has served a notice of cross-appeal and has, in the Memorandum of Fact and Law, advanced arguments in support of varying the decision under appeal, the appellant shall, within 30 days after being served with the respondent's Memorandum of Fact and Law, serve a copy of the appellant's Memorandum in Reply on the respondent in accordance with subsection 9(2), with such modifications as the circumstances require, and file five copies of it with the Registry.

8. Rule 11 (see footnote 14) of the Rules and the heading (see footnote 15) before it are replaced by the following:

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 do so in the manner set out in subsection (1).

9. Subsections 11.1(1) (see footnote 16) and (2) (see footnote 17) of the Rules are replaced by the following:

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.

10. The heading before Rule 12 of the Rules is replaced by the following:

Release from Pre-trial Custody and Release Pending Appeal

11. (1) Subsections 12(1) (see footnote 18) and (2) (see footnote 19) of the Rules are replaced by the following:

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.

(2) The portion of subsection 12(3) of the Rules before paragraph (b) is replaced by the following:

(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;

(3) Subsection 12(5) of the Rules is replaced by the following:

(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).

12. Rule 13 (see footnote 20) of the Rules is replaced by the following:

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.

13. Subsection 14(2) (see footnote 21) of the Rules is replaced by the following:

(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.

14. Subsections 16(1) (see footnote 22) and (2) (see footnote 23) of the Rules are replaced by the following:

RULE 16. (1) A judge may, at any time, make an order requiring the appellant or applicant to furnish particulars of any ground of appeal stated in the Notice of Appeal or Notice of Motion filed under Rule 12 or 13.1.

(2) A respondent who requires particulars shall serve a demand on the appellant or applicant and file a copy with the Registry specifying the grounds stated in the notice in respect of which particulars are required, and requesting that, within seven days after the demand is received,

(a) the particulars be furnished to him or her; and

(b) a copy of the particulars be filed with the Registry.

15. Rule 17 (see footnote 24) of the Rules is replaced by the following:

RULE 17. (1) If it is considered just in the circumstances, the Court may, on motion, extend or abridge a period provided by these Rules or fixed by an order and the motion may be brought before or after the expiration of the period provided by these Rules or fixed by the order.

(2) Despite subsection (1), a party may, without bringing a motion, have a period provided by Rule 5, 7, 8, 9, 10, 14 or 16 extended once, for a period not exceeding one half of the number of days in that period, if the party obtains the written consent of all the parties and files the consent in the Registry before the time provided by the Rule.

(3) No extension may be made on consent of the parties in respect of a period fixed by an order of the Court.

16. Subsection 18(2) of the English version of the Rules is replaced by the following:

(2) Where the time limit for doing a thing expires or falls on a Saturday or holiday, the thing may be done on the day next following that is not a Saturday or holiday.

17. (1) Subsection 19(2) of the English version of the Rules is replaced by the following:

(2) Barristers or advocates are officers of the Court and may practise in the Court if they are

(2) Subsections 19(4) to (7) (see footnote 25) of the Rules are replaced by the following:

(4) A party who is represented by counsel of the party's own choice may, without leave, and by notice filed in the Registry, change that counsel. The notice must be signed by the new counsel and a copy served on the other party, the former counsel and the Court Martial Administrator. The notice is not effective until proof of that service has been filed in the Registry.

(5) Where one counsel of record of a party is appointed by the Director of Defence Counsel Services, the party may apply for an order for leave to change that counsel, provided that notice of the application is given to the Director of Defence Counsel Services, the other party, the counsel of record and the Court Martial Administrator. The party shall serve the order on them and the order shall not take effect until proof of that service has been filed.

(6) Where, for any reason, the counsel of record ceases to represent a party, that counsel may apply for an order declaring that the counsel is no longer counsel of record, provided that notice of the application is given to the parties and, if counsel was appointed by the Director of Defence Counsel Services, the Director of Defence Counsel Services. The counsel shall serve the order on the parties, the Court Martial Administrator and the Director of Defence Counsel Services and the order shall not take effect until proof of that service has been filed.

(7) A party who is no longer represented by counsel of record shall file with the Registry and serve on the other parties and the Court Martial Administrator a notice of the party's address and telephone and facsimile numbers for service in Canada.

18. The heading before Rule 20 of the Rules is replaced by the following:

Appointment of Counsel by the Director of Defence Counsel Services

19. (1) Subsection 20(1) of the Rules is replaced by the following:

RULE 20. (1) A party who is not represented by counsel of record may apply to the Chief Justice for approval of the appointment by the Director of Defence Counsel Services of counsel to represent the party.

(2) Subparagraph 20(2)(a)(i) (see footnote 26) of the Rules is replaced by the following:

(3) Rule 20 of the Rules is amended by adding the following after subsection (4):

(5) The Chief Justice shall approve the appointment of counsel by the Director of Defence Counsel Services where, after considering the affidavit of the applicant and any reply of the Minister, the Chief Justice determines that the facts, including the financial circumstances of the applicant, justify the appointment.

20. Rule 21 of the Rules and the heading before it are replaced by the following:

Fees and Costs

RULE 21. (1) Where a party other than the Minister is represented by counsel, the Court may direct that all or any of the counsel's fees in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

(2) The Court may direct that all or any of the party's costs in the Court in relation to the appeal or application be paid, as taxed by an assessment officer in accordance with the applicable tariff of the Federal Court Rules, 1998.

21. (1) Subsections 23(1) to (3) (see footnote 27) of the Rules are replaced by the following:

RULE 23. (1) Subject to subsections (4), (5) and (7), service of a document shall be effected

(a) in the case of service on an appellant or applicant, by personal service, registered mail or by a courier that assures service within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the Notice of Appeal, Notice of Motion commencing the proceeding or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;

(b) in the case of service on a respondent, by personal service, registered mail or by a courier that assures delivery within two days after pick-up, excluding Saturdays and holidays, to the address for service as set out in the notice referred to in subsection 5(3) or (4) or notice of change of address filed with the Registry and served on the other parties and on the Court Martial Administrator;

(2) Service of a document is deemed to have taken place on

(3) When the second or fifth day after the pick-up by the courier or posting of the document falls on a Saturday or holiday, the service is deemed to have taken place on the next day that is not a Saturday or holiday.

(2) Subsection 23(5) (see footnote 28) of the Rules is replaced by the following:

(5) A party in custody, not represented by counsel, may file and serve a document by delivering a copy of it to a superior officer or any other person by whom the party is held in custody. The person receiving the document shall make four copies of it and endorse the date of receipt on the original and each copy and shall retain one copy, return one copy to the person in custody and without delay serve the original and remaining copies on the Registry. On receipt of the document, the Registry shall file the original, send a copy to the Court Martial Administrator and the other copy to the counsel of record for the Minister, or, if there is no counsel of record, to the Minister.

(3) Rule 23 of the Rules is amended by adding the following after subsection (7):

(8) Service of a document shall be proven by

(9) Where service takes place in the Province of Quebec, service may also be proven by a certificate of a bailiff, sheriff or other authorized person in accordance with the Quebec Code of Civil Procedure.

22. The Rules are amended by adding the following after Rule 23:

Filing of Documents

RULE 23.1 (1) Documents shall be filed with the Registry at the following address:

The Administrator
Court Martial Appeal Court of Canada
The Supreme Court Building
Wellington Street
Ottawa, Ontario
K1A 0H9

(2) A document is filed by being

(3) The following documents may not be filed by facsimile without the consent of the Administrator, which consent may be given where filing by facsimile 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 facsimile shall include a cover page that sets out the following information:

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

(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.

23. Subsections 24(2) and (3) of the Rules are replaced by the following:

(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.

24. Rule 25 of the Rules is replaced by the following:

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

(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.

25. The heading before Rule 27 of the Rules is replaced by the following:

Application by Party Under Custody to Attend Hearing

26. (1) Paragraph 27(5)(a) of the Rules is replaced by the following:

(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

(2) Subsection 27(6) of the Rules is repealed.

27. Rule 29 (see footnote 29) of the French version of the Rules is replaced by the following:

RÈGLE 29. À l'audition, seuls les moyens d'appel énoncés dans l'avis de requête, l'avis d'appel ou l'exposé des faits et du droit peuvent être soulevés, à moins d'autorisation contraire de la Cour. Sauf dans des cas exceptionnels, celle-ci n'est accordée que si l'appelant a avisé l'intimé dans un délai raisonnable des moyens additionnels qu'il entend soulever.

28. (1) The portion of subsection 32(1) (see footnote 30) of the Rules before paragraph (a) is replaced by the following:

RULE 32. (1) No new evidence may be introduced at a hearing of an appeal by a party unless that party, before the making of the order setting the appeal down for hearing under Rule 4.1,

(2) Subsection 32(3) of the French version of the Rules is replaced by the following:

(3) Le témoin comparaissant à l'audience est tenu de le faire sous serment ou sous affirmation solennelle en la forme prévue par la cour martiale.

29. Rule 33 of the Rules is replaced by the following:

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 Court Rules, 1998.

30. Subsection 34(1) of the Rules is replaced by the following:

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 Court Rules, 1998.

31. (1) Rule 35 of the Rules is amended by adding the following after subsection (4):

(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.

(2) Subsection 35(6) of the Rules is replaced by the following:

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

32. Subsection 36(1) of the Rules is replaced by the following:

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.

33. Paragraph 37(a) (see footnote 31) of the French version of the Rules is replaced by the following:

a) de l'avis de la Cour, l'avis d'appel ne renferme pas suffisamment de renseignements sur les moyens de l'appel et l'appelant ne s'est pas conformé, dans un délai raisonnable, à une ordonnance lui enjoignant de fournir de tels renseignements;

34. Paragraphs 40(2)(g) and (h) of the Rules are replaced by the following:

35. Schedules I (see footnote 32) and III to the Rules are replaced by the following:

SCHEDULE 1
(Paragraph 5(3)(a))

(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)

(Signature of counsel or respondent)

(Name, address and telephone and facsimile numbers of counsel or respondent)

TO: (Names and addresses of other counsel or parties and the Court Martial Administrator)

SCHEDULE 2
(Paragraph 5(3)(b))

(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 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.)

(Date)

(Signature of counsel or respondent)

(Name, address and telephone and facsimile numbers of counsel or respondent)

TO: (Name and address of appellant's or applicant's counsel or appellant or applicant and the Court Martial Administrator)

SCHEDULE 3
(Subsections 6(1), 12(2) and 13.1(3))

MEMORANDUM OF PARTICULARS

1. A Memorandum of Particulars shall have the following heading:

(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

MEMORANDUM OF PARTICULARS

2. Information to be included, as applicable:

3. 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).

4. When the disposition has resulted in the detention of the person charged, include

(a) the name, postal address and telephone number of the institution where the person is being held; and

(b) the name and title of the warden, the superintendent or, as the case may be, the person in charge or command of the institution.

36. The heading "SCHEDULE IV" of Schedule IV to the Rules is replaced by the following:

SCHEDULE 4
(Subsection 6(5))

37. Section 3 of Schedule 4 to the Rules is repealed.

38. Section 6 (see footnote 33) of Schedule 4 to the Rules is replaced by the following:

6. 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:

part	item
Part I	1. Notice of Appeal, Notice of Motion commencing an appeal or application or Petition for a New Trial sent to the Court by the Minister, and notice of cross-appeal, if any.
	2. Memorandum of Particulars in accordance with Schedule 3.
	3. Any agreement referred to in subsection 6(4) of these Rules.
	4. Charges, arraignments, pleas, admissions, entries and orders at the court martial or hearing in chronological order.
Part II	The evidence.
Part III	The closing addresses, finding and disposition by the Court Martial or military judge.
Part IV	The exhibits.
Part V	The certificate of the Court Martial Administrator, as follows:

I, ______________, hereby certify that the foregoing record of the case on appeal to the Court Martial Appeal Court of Canada is a true and correct reproduction of the originals of which they purport to be copies.

________________________________

Court Martial Administrator (or agent)

39. Section 11 (see footnote 34) of Schedule 4 to the Rules is replaced by the following:

11. The cover and title page of an appeal book shall have the following heading:

(Court File No.)

COURT MARTIAL APPEAL COURT OF CANADA

BETWEEN:

(Name)

Appellant

-and-

(Name)

Respondent

APPEAL BOOK

40. (1) The portion of Part I of section 13 (see footnote 35) of Schedule 4 to the Rules beginning with the words "Part I" is replaced by the following:

part	item
Part I	1. Notice of Appeal or Notice of Motion commending an appeal or application or Petition for a New Trial sent to the Court by the Minister, and notice of cross-appeal, if any.
	2. Memorandum of Particulars in accordance with Schedule 3.
	3. Charges, arraignments, pleas, admissions, entries and orders at the Court Martial or hearing in chronological order.

(2) The portion of Part IV of section 13 (see footnote 36) of Schedule 4 to the Rules beginning with the words "Part IV" is replaced by the following:

Part IV
Each closing address, indicating by whom it was delivered and the finding and disposition by the Court Martial or military judge with its date.

41. Schedule IV to the French version of the Rules is amended by replacing the words "dossier conjoint" with the words "dossier d'appel" in the following provisions:

42. Schedule V (see footnote 37) to the Rules is replaced by the following:

SCHEDULE 5
(Rule 11)

(Court File No.)

COURT MARTIAL APPEAL COURT OF CANADA

BETWEEN:

(Name)

Appellant

- and -

(Name)

Respondent

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:

1. The requirements of Rules 7, 9 and 10 of the Court Martial Appeal Court Rules have been complied with.

2. A notice of constitutional question has been served in accordance with Rule 11.1 of these Rules.

(or)

2. There is no requirement to serve a notice of constitutional question under Rule 11.1 of these Rules in this appeal.

3. The hearing should be held at (place).

4. The hearing should last no longer than (number) hours (or days).

5. The representatives of all parties to the appeal are as follows:

(If more than one appellant, respondent or intervener represented by different counsel, list all counsel.)

6. 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).

7. The hearing will be in (English or French, or partly in English and partly in French).

8. 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).

(Date)

(Signature of counsel or party)

(Name and address and telephone and facsimile numbers of counsel or party)

TO: (Names and addresses of other counsel or parties)

SCHEDULE 6
(Subsection 11.1(2))

(Court File No.)

COURT MARTIAL APPEAL COURT OF CANADA

BETWEEN:

(Name)

Appellant

-and-

(Name)

Respondent

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.

(Date)

(Signature of counsel or party)

(Name and address and telephone and facsimile numbers of counsel or party)

TO: The Attorney General of Canada

The Attorney General of (each province)

SCHEDULE 7
(Subsections 12(2), 13.1(3) and 24(2))

(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 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.

(Date)

(Signature of counsel or party)

(Name and address and telephone and facsimile numbers of counsel or party)

TO: (Name and address of counsel or party)

SCHEDULE 8
(Paragraph 23(8)(a))

(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

AFFIDAVIT OF SERVICE

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 which of the following is appropriate and include it in the body of the affidavit:)

[In the case of personal service:]

1. On (date), at (time), I served (identify person served) with (identify the document served) leaving a copy with that person at (address where service was made).

2. I was able to identify the person by means of (state the means by which the person's identity was ascertained).

[For service by registered mail or ordinary mail]

1. On (date), at (time), I sent to (identify person served) by registered/ordinary mail a copy of (identify the document served).

2. On (date), I received the attached acknowledgement of receipt card/post office receipt bearing a signature that purports to be the signature of (identify person).

[Service by leaving document with counsel]

I served (identify party served) with (identify document served) by leaving a copy on (date) at (hour) at the office of (name of counsel), counsel for the (identify party).

[For service by mail on counsel]

I served (identify party served) with (identify document served) by sending a copy by mail on (date) at (hour) to (name of counsel), counsel for the (identify party).

[For service by facsimile]

I served (identify person served) with (identify document served) by sending a copy by facsimile on (date) at (hour) at (facsimile number).

[For service by courier]

1. I served (identify person served) with (identify document served) by sending a copy by (name of courier), at (full address of place of delivery).

2. The copy was given to the courier on (date).

Sworn (or Affirmed) before me at

the (City, Town, etc.) of (name)

in the (County, Regional Municipality,

etc.) of (name) on (date).

Commissioner of Oaths

(Signature of Deponent)

SCHEDULE 9
(Paragraph 23(8)(c))

(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

COUNSEL'S CERTIFICATE OF SERVICE

I, (name of counsel), Counsel, certify that I caused (the appellant or applicant, as the case may be) (name of party served) to be duly served with (if enclosure, "this document"; otherwise identify document served) by (method of service, including name of any person served on behalf of the party) on (date of service).

(Signature of Counsel) (Name and address and telephone and facsimile numbers of the counsel)

TRANSITIONAL PROVISION

43. Time limits in respect of proceedings commenced before the day on which these Rules come into force, and that are running on that day, are deemed to begin to run as of that day.

COMING INTO FORCE

44. These Rules come into force on the day on which they are published in the Canada Gazette, Part II.

[49-1-o]

Footnote a

S.C. 1998, c. 35, s. 72

Footnote b

R.S., c. 31 (1st Supp.), s. 57

Footnote 1

SOR/86-959

Footnote 2

SOR/92-152

Footnote 3

SOR/92-152

Footnote 4

SOR/92-152

Footnote 5

SOR/92-152

Footnote 6

SOR/92-152

Footnote 7

SOR/92-152

Footnote 8

SOR/92-152

Footnote 9

SOR/92-152

Footnote 10

SOR/92-152

Footnote 11

SOR/92-152

Footnote 12

SOR/92-152

Footnote 13

SOR/92-152

Footnote 14

SOR/92-152

Footnote 15

SOR/92-152

Footnote 16

SOR/91-162

Footnote 17

SOR/91-162

Footnote 18

SOR/92-152

Footnote 19

SOR/92-152

Footnote 20

SOR/92-152

Footnote 21

SOR/92-152

Footnote 22

SOR/92-152

Footnote 23

SOR/92-152

Footnote 24

SOR/92-152

Footnote 25

SOR/92-152

Footnote 26

SOR/92-152

Footnote 27

SOR/92-152

Footnote 28

SOR/92-152

Footnote 29

SOR/92-152

Footnote 30

SOR/92-152

Footnote 31

SOR/92-152

Footnote 32

SOR/92-152

Footnote 33

SOR/92-152

Footnote 34

SOR/92-152

Footnote 35

SOR/92-152

Footnote 36

SOR/92-152

Footnote 37

SOR/92-152

NOTICE:
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