Rules Amending the Court Martial Appeal Court Rules: SOR/2022-253

Canada Gazette, Part II, Volume 156, Number 26

Registration
SOR/2022-253 December 2, 2022

NATIONAL DEFENCE ACT

P.C. 2022-1262 December 2, 2022

The Chief Justice of the Court Martial Appeal Court of Canada, under subsection 244(1)footnote a and section 248.82footnote b of the National Defence Act footnote c, makes the annexed Rules Amending the Court Martial Appeal Court Rules.

Ottawa, September 19, 2022

The Honourable B. Richard Bell
Chief Justice of the Court Martial Appeal Court of Canada

The Governor General in Council, on the recommendation of the Minister of National Defence and the Minister of Justice, under subsection 244(1)footnote a and section 248.82footnote b of the National Defence Act footnote c, approves the annexed Rules Amending the Court Martial Appeal Court Rules, made by the Chief Justice of the Court Martial Appeal Court of Canada.

Rules Amending the Court Martial Appeal Court Rules

Amendments

1 Rule 1 of the Court Martial Appeal Court Rules footnote 1 and the heading before it are repealed.

2 (1) The definition Registry in Rule 2 of the Rules is repealed.

(2) The definitions Administrator, counsel, holiday and Notice of Appeal in Rule 2 of the Rules are replaced by the following:

Administrator
means the Chief Administrator appointed under section 5 of the Courts Administration Service Act, or a person acting on their behalf; (administrateur)
counsel
means a member of the bar of a province; (avocat)
holiday
means a Saturday or any other day defined as a holiday in subsection 35(1) of the Interpretation Act; (jour férié)
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)

3 The Rules are amended by adding the following before Rule 3:

RULE 2.1 These Rules apply to all proceedings before the Court.

4 Rule 3 of the Rules is renumbered as subsection 3(1) and is amended by adding the following:

(2) 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.

(3) A form that is required by these Rules may incorporate any variations that are necessary in the circumstances.

5 The heading before Rule 4.1 is replaced by the following:

Time and Place of Hearings

6 Subsections 4.1(1) and (2) of the Rules are replaced by the following:

RULE 4.1 (1) For each proceeding in which a hearing is to be held, the Chief Justice shall

(1.1) A hearing shall be conducted, in whole or in part, in person, by telephone or by videoconference.

(1.2) The Court may give any directions that are necessary to facilitate the conduct of the hearing.

(2) The Registry shall send a copy of the order referred to in paragraph (1)(b) to the Court Martial Administrator and the parties.

7 Subsections 4.2(2) to (4) of the Rules are replaced by the following:

(2) The document shall

(3) If the document is on paper, each page of the document shall

(4) A memorandum of fact and law that is on paper shall have

(4.1) 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).

8 (1) Paragraph 5(1)(b) of the Rules is replaced by the following:

(2) Subsection 5(1) of the Rules is amended by adding striking out “or” at the end of paragraph (c) and by adding the following after that paragraph (c):

9 (1) Subsections 6(1) and (2) of the Rules are replaced by the following:

RULE 6 (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.

(2) 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).

(2) Subsection 6(5) of the Rules is replaced by the following:

(5) 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.

10 (1) Subsection 7(1) of the Rules is replaced by the following:

RULE 7 (1) Within 30 days after the day on which the appellant is served with the appeal book, the appellant shall serve a copy of their Memorandum of Fact and Law on the respondent and file five paper copies of it with the Registry, unless it is filed by electronic transmission.

(2) Paragraph 7(2)(d) of the Rules is replaced by the following:

11 (1) Subsection 9(1) of the Rules is replaced by the following:

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

(2) Paragraph 9(2)(d) of the Rules is replaced by the following:

12 Subsection 10(1) of the Rules is replaced by the following:

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

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

13 Subsection 11(2) of the Rules is replaced by the following:

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

14 The Rules are amended by adding the following after Rule 11.1:

Book of Authorities

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

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

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

15 Subsection 13.1(3) of the French version of the Rules is replaced by the following:

(3) L’appelant, après avoir été informé du renvoi de sa demande devant la Cour, dépose sans délai au greffe un avis de requête en la forme prévue à l’annexe 7, accompagné d’un exposé des renseignements établi conformément à l’annexe 3 et d’un affidavit donnant les faits invoqués à l’appui qui n’apparaissent pas au dossier.

16 Rule 18 of the Rules is replaced by the following:

RULE 18 (1) 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.

(2) A holiday shall not be included in the computation of a time limit that is less than six days.

(3) 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.

17 The heading before Rule 19 is replaced by the following:

Representation of Parties

18 (1) Subsections 19(1) to (3) of the Rules are replaced by the following:

RULE 19 (1) 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.

(2) 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.

(3) 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.

(3.1) 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).

(3.2) 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.

(3.3) 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.

(2) Subsections 19(6) and (7) of the Rules are replaced by the following:

(6) 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.

(7) 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.

(8) The order takes effect when counsel files with the Registry proof that the order has been served in accordance with subsection (7).

19 Rule 21 of the Rules is replaced by the following:

RULE 21 (1) 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.

(2) 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.

20 Subsection 22(1) of the English version of the Rules is replaced by the following:

RULE 22 (1) 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.

21 (1) Subsections 23(1) to (4) of the Rules are replaced by the following:

RULE 23 (1) 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:

(2) A party who is self-represented shall not be served with a document by fax or email.

(3) 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).

(4) Except as otherwise ordered by a judge, service of a document on a party’s counsel of record is effected by

(2) Subsection 23(9) of the Rules is replaced by the following:

(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.

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

RULE 23.01 (1) A document that is served by fax shall be printed on paper measuring 21.5 cm by 28 cm.

(2) A document that is more than 40 pages in length shall not be served by fax without the recipient’s prior consent.

(3) A document that is served by fax shall have a cover page that sets out the following information:

(4) 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.

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

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

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

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

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

RULE 23.03 (1) Unless otherwise ordered by the Court, a document that is served by email shall be formatted in PDF (Portable Document Format), or in any other format approved by the Court, such that the document can be searched electronically.

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

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

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

23 (1) Subsections 23.1(1) and (2) of the Rules are replaced by the following:

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

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

(2) Paragraph 23.1(4)(a) of the Rules is replaced by the following:

(3) Rule 23.1 of the Rules is amended by adding the following after subsection (4):

(4.1) A document that is filed by electronic transmission shall be formatted in PDF (Portable Document Format), or in any other format approved by the Court, such that the document can be searched electronically, and the document shall be accompanied by the following information:

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

(4) Rule 23.1 of the Rules is amended by adding the following after subsection (5):

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

24 Subsection 25(1) of the English version of the Rules is replaced by the following:

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

25 The heading before Rule 32 of the Rules is replaced by the following:

Witnesses and New Evidence

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

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

27 Schedules 8 and 9 to the Rules are replaced by the Schedules 7.1 to 9 set out in the schedule to these Rules.

28 The Rules are amended by replacing “Federal Court Rules, 1998” with “Federal Courts Rules” in the following provisions:

29 The English version of the Rules is amended by replacing “facsimile” with “fax” in the following provisions:

Coming into Force

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

SCHEDULE

(Section 27)

SCHEDULE 7.1

(Subsection 19(3))

(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 of Respondent)

Respondent

NOTICE OF LIMITED-SCOPE REPRESENTATION

The (appellant, applicant or respondent, as the case may be) has appointed (name) as counsel to provide limited-scope representation in this proceeding.

1 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.)

2 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.)

3 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.

(Date)

(Signature of counsel)

(Name, address, telephone and fax numbers and email address of counsel)

(Signature of appellant, applicant or respondent, as the case may be)

(Name, address, telephone and fax numbers and email address of appellant, applicant or respondent, as the case may be)

TO: (Name, address and email address of other counsel or parties)

SCHEDULE 7.2

(Subsection 19(3.2))

(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 of Respondent)

Respondent

NOTICE TO CEASE LIMITED-SCOPE REPRESENTATION

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.

(Date)

(Signature of counsel of record)

(Name, address, telephone and fax numbers of counsel of record)

TO: (Name, address and email address of other counsel or parties)

SCHEDULE 7.3

(Subsection 23.02(3))

(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 of Respondent)

Respondent

NOTICE OF CONSENT TO SERVICE BY EMAIL

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.)

(Date)

(Signature of counsel or party filing notice)

(Name, address, telephone and fax numbers and email address of counsel or party filing notice)

SCHEDULE 7.4

(Subsection 23.02(4))

(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 of Respondent)

Respondent

NOTICE OF WITHDRAWAL OF CONSENT TO SERVICE BY EMAIL

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).

(Date)

(Signature of counsel or party filing notice)

(Name, address, telephone and fax numbers and email address of counsel or party filing notice)

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 of Respondent)

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 one of the following to include in the body of the affidavit.)

[In the case of personal service]

[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).

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 of Respondent)

Respondent

COUNSEL’S CERTIFICATE OF SERVICE

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).

(Signature of counsel)

(Name, address, telephone and fax numbers and email address of the counsel)

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

Since the last update to the Court Martial Appeal Court Rules (SOR/86-959) [Rules] in 2001, there have been legislative changes, jurisprudential developments, and technology improvements. These changes have affected the practice and procedure before the Court Martial Appeal Court of Canada (Court). Consequently, it is necessary to amend the Rules to modernize them while ensuring they take into account these changes, developments, and improvements, and fill any gaps and shortcomings found therein.

Background

Subsection 244(1) and section 248.82 of the National Defence Act (Act) provide that the Chief Justice of the Court may, with the approval of the Governor in Council, make rules relating to the functioning of the appeal process and the exercise of the Court’s powers and duties. The current Rules entered into effect in 1986, replacing the former Court Martial Appeal Rules of Canada.

The ad hoc Court Martial Appeal Court of Canada Rules Revision Committee (Rules Committee) was established by the Chief Justice of the Court in 2015. The Rules Committee included representation from the Court, the Courts Administration Service, the military bar, and the civilian bar. The Court Martial Administrator was also invited to participate in the Rules Committee given the key role she plays in supporting appeals from court martials. More specifically, the Rules Committee consisted of three judges, one private sector counsel, the Director of the Defence Counsel Services, the Deputy Judge Advocate General, the Director of Military Prosecutions, the Executive Director and General Counsel of the Court, the Legal Advisor to the Office of the Chief Military Judge, and the Court Martial Administrator.

The Rules Committee aimed to ensure that the Rules are up to date and recommend necessary amendments. In addition, the Rules Committee was also given the mandate to modernize the Rules based on new technological developments. As part of its work, the Rules Committee has not undertaken a full replacement of the Rules; instead, it aimed to identify gaps and deficiencies that could be addressed by a revision and update of the Rules.

The Rules Committee met on four occasions in Ottawa. Four subcommittees were formed. Their mandate was to identify the need for amendments driven by legislative changes, new jurisprudential developments, and technological advancements and to address the gaps and deficiencies noted therein. The issue identification subcommittee reports were used to identify specific Rules and issues for the Rules Committee’s consideration. Each identified issue was discussed by the Rules Committee and a position was adopted on whether the amendment was necessary. Where there was a consensus on the need for an amendment, the Rules Committee reviewed the proposed wording of the amended rule. A number of identified issues where both straightforward and non-contentious, and in these cases, they were directly referred for initial drafting.

Objective

The main objective of the amendments is to (a) ensure that the Rules are up to date, take into account technological advances, and enable the use of current and future technology in Court proceedings and (b) address the gaps and deficiencies identified therein.

Description

The amendments to the Rules are set out hereafter.

Short title 

Rule 1 – whereas short titles are used less and less in regulatory instruments, Rule 1, which sets out the short title, and the heading that precedes it are repealed.

Interpretation

Rule 2 – Administrator – Notice of Appeal – Counsel – Holiday – Registry – the definition of “Administrator” is amended to clarify that the Chief Administrator is a person appointed under section 5 of the Courts Administration Service Act, S.C. 2002, c. 8, or a person acting on their behalf. The definition of “Notice of Appeal” is amended to clarify that the Notice of Appeal form is found in subsection 115.08(2) of the Queen’s Regulations and Orders. The definition of “Counsel” is amended to clarify that a member of the bar of a province can act before the Court. The definition of “Holiday” is amended to include “Saturday”. The definition of “Registry” is repealed to avoid having to amend the Rules every time a new Regional Office is created or one is closed. The reference to “Principal Office” and “Other Office” is only used once in the Rules; therefore, the reference to “Principal Office” and “Other Office” is added to Rule 23.1(1).

General

Rule 2.1 – is added after the “General” heading to clarify that the Rules apply to all proceedings before the Court.

Rule 3 – becomes subsection 3(1).

Subsection 3(2) – is added to the Rules to confirm that the Court has the necessary authority to determine the applicable procedure when facing situations not provided for in the Rules or federal legislation.

Subsection 3(3) – is added to the Rules in order to provide for greater flexibility in the use of the forms in the schedules to the Rules by specifying that they can be adapted to the circumstances.

Heading — Schedule of Hearings

Heading preceding Rule 4.1 – Schedule of Hearings – is replaced by “Time and Place of Hearings.”

Schedule of hearings

Rule 4.1 – subsection 4.1(1) is amended to specify that the Chief Justice can fix, by order, not only the date, time and place of the hearing, but also the manner in which it will be held (paragraph 4.1(1)(b)). Subsection 4.1(1.1) is added to specify the manner in which a hearing may be conducted and provide for the possibility of conducting a hybrid hearing (i.e. partially in person, by telephone or by videoconference). Subsection 4.1(1.2) is added to authorize the Court to give directions to facilitate the conduct of hearings. Subsection 4.1(2) is added to specify that a copy of the order made under paragraph 4.1(1)(b) shall be sent to the Court Martial Administrator and the parties. These changes will modernize the Rules and, at the same time, ensure effective judicial processes.

Form of documents

Subsection 4.2(2) – is amended by grouping together all the requirements applicable to documents presented as part of a proceeding (i.e. 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; etc.) and by changing certain requirements currently in effect.

Subsection 4.2(3) – is replaced by the new subsection (3) that addresses the requirements applicable to paper documents.

Subsection 4.2(4) – is replaced by the new subsection (4) that specifies the colour of the cover page of the memorandum of fact and law that is on paper.

Subsection 4.2(4.1) – is added to address the requirements applicable to electronic documents (i.e. PDF or other Court-approved format, electronically searchable, allowing conversion to be printed on paper measuring 21.5 cm by 28 cm, and each page of which meets the requirements set out in paragraph 3(b)).

Commencement of proceedings

Paragraph 5(1)(b) – is amended to remove the reference to section 232 of the Act, given that the definition of “Notice of Appeal” refers to it.

Paragraph 5(1)(b.1) – is added to require the Registry to open a file upon receipt of an application under section 248.2 of the Act for release from detention or imprisonment until the determination of the appeal.

Paragraph 5(1)(c.1) – is added to require the Registry to open a file upon receipt of an application to address a breach of undertaking under section 248.81 of the Act.

Obligations of the Court Martial Administrator

Subsection 6(1) – is amended to remove the reference to section 232 of the Act, given that the definition of “Notice of Appeal” refers to it.

Subsection 6(2) – is amended to remove the reference to subsection 6.1(1), as it governs the content of the document rather than the timelines when the Court Martial Administrator must send the document; subsection 5(1) referred to in subsection 6(2) is replaced by subsection 5(2) because the obligation to serve is found in subsection 5(2) and not subsection 5(1); subsection 13.1(3) referred to in subsection 6(2) is replaced by subsection 13.1(4), because the obligation to serve is found in subsection 13.1(4) and not subsection 13.1(3). In addition, in the English version, the term “application” is replaced with “petition” in order to be consistent with the wording of section 249.16 of the Act as well as the other Rules.

Subsection 6(5) – is amended to specify that the copies of the appeal book must be on paper.

Appellant’s memorandum of fact and law

Subsection 7(1) – is amended to specify that the appellant’s memorandum of fact and law shall be filed with the Registry either in five paper copies or by electronic transmission. A memorandum filed electronically shall be followed by one paper copy (see subsection 23.1(4.2)).

Paragraph 7(2)(d) – the order of the documents listed in paragraph 7(2)(d) is amended to align more closely with the wording of the Federal Courts Rules (i.e. list of the statutes, regulations and authorities, instead of, as provided by the wording that existed prior to the coming into force of these amendments, list of authorities, statutes and regulations). In this same paragraph, the wording “together with copies of the pertinent portions thereof” is removed, given the new Rule 11.2 that will specifically address the content of the book of authorities.

Respondent’s memorandum of fact and law

Subsection 9(1) – is amended to specify that the respondent’s memorandum of fact and law shall be filed with the Registry either in five paper copies or by electronic transmission. A memorandum filed electronically shall be followed by one paper copy (see subsection 23.1(4.2)).

Paragraph 9(2)d) – the order of the documents listed in subsection 9(2)(d) is amended to align more closely with the wording of the Federal Courts Rules (i.e. list of the statutes, regulations and authorities, instead of, as provided by the wording currently in force, list of authorities, statutes and regulations). In this same paragraph, the wording “together with copies of the pertinent portions thereof” is removed, given the new Rule 11.2 that will specifically address the content of the book of authorities.

Memorandum in reply

Subsection 10(1) – is amended to clarify that the appellant’s memorandum in reply must be filed with the Registry either in five paper copies or by electronic transmission. A memorandum filed electronically shall be followed by one paper copy (see subsection 23.1(4.2)).

In addition, for ease of reading, the phrase “in accordance with subsection 9(2), with such modifications as the circumstances require” in subsection 10(1) is moved to the new subsection 10(1.1).

Subsection 10(1.1) – is added to specify that the memorandum in reply shall contain the information referred to in subsection 9(2), with any necessary modifications as the circumstances require.

Request for hearing

Subsection 11(2) – is amended to specify that the respondent may serve and file a requisition for hearing “within 20 days after the day on which the period referred to in subsection (1) ends” in the form referred to in subsection (1).

Book of authorities

Rule 11.2 – is added; it concerns the preparation and presentation of the book of authorities. Specifically, subsection (1) gives the parties the option of filing one electronic copy of the joint book of authorities followed by a paper copy (see subsection 23.1(4.2)) or five paper copies and, in the absence of an agreement between the parties as to its contents, allows the parties to file a separate book of authorities. Subsection (2) provides for the time within which the book must be filed. Subsection (3) specifies the colour of the cover of the book of authorities that is on paper (i.e. burgundy cover, if it is a joint book; if it is a separate book, the cover will be the same colour as the cover of the memorandum of fact and law).

Petition for new trial

Subsection 13.1(3) – the phrase “dès que possible” in the French version is replaced with the phrase “sans délai” to align with the English version of the wording which reads “without delay.”

Computation of time

Subsection 18(1) – is amended to clarify that sections 26 to 28 of the Interpretation Act govern the computation of time limits set out in the Rules or by order of the Court.

Subsection 18(2) – is amended to clarify that statutory holidays are not included in the computation of time limits that are less than six days.

Subsection 18(3) – is added to indicate that days falling within the period beginning on December 21 and ending on January 7 are not included in the computation of time limits, except for time limits for the doing of a thing in relation to an application made under Division 3 or 10 of Part III of the Act.

Representation by counsel

Heading preceding Rule 19 – Representation by Counsel – is replaced by “Representation of Parties.”

Subsection 19(1) – is amended to allow a party to be represented by counsel for all or part of an appeal or application before the Court (limited-scope mandate).

Subsection 19(2) – is replaced by the new subsection (2) which incorporates the wording of subsection (3) of the Rules in effect before the coming into force of these amendments.

Subsection 19(3) – is replaced by the new subsection (3) pursuant to which a lawyer representing a party only for part of a proceeding must 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.

Subsection 19(3.1) – is added to clarify that 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).

Subsection 19(3.2) – is added to clarify that a lawyer who ceases their limited-scope representation of the party must 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.

Subsection 19(3.3) – is added to require the party who is self-represented for all or part of a proceeding to provide each party and the Court Martial Administrator with their contact information for service in Canada and file it with the Registry.

Subsection 19(6) – is replaced by the new subsection (6), which provides that 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 all parties, including the Director of Defence Counsel Services if the latter appointed counsel.

Subsection 19(7) – is replaced by the new subsection (7), which prescribes that the order referred to in subsection (6) shall be served on each party, the Director of Defence Counsel Services and the Court Martial Administrator.

Subsection 19(8) – is added to clarify that the order under subsection (6) takes effect when counsel files with the Registry proof that the order has been served.

Fees and costs

Subsections (1) and (2) of Rule 21 – are amended to specify that counsel’s fees are assessed in accordance with Tariff B of the Federal Courts Rules (subsection 21(1)) and that a party’s costs are assessed in accordance with Tariff A or B of the Federal Courts Rules. The reference to the “Federal Court Rules (1998)” is replaced by “Federal Courts Rules.”

Subsection 22(1) – in the English version of the provision, the phrase “any taxation pursuant to” is replaced with “an assessment under” to ensure consistency of language between subsection 22(1) and subsections 21(1) and (2).

Service of documents

Subsection 23(1) – is amended to allow parties, subject to certain conditions, to serve documents by email; in addition, the addresses for service are removed in order to avoid the need to amend the Rules every time the addresses change. The addresses for service of persons listed in paragraphs 23(1)(c) to (g) prior to the coming into force of these amendments are posted and updated annually, if required, on the Court’s website.

Paragraphs 23(2)(a) and (b) – which regulate when service by courier or registered mail becomes effective, are replaced by the new subsection (2), which provides that service by electronic mail or facsimile may not be made upon an unrepresented party. The new Rule 23.04 regulates when service of documents becomes effective.

Subsection 23(3) – which regulates when service by mail becomes effective, is replaced by the new subsection (3), which governs the service of a document on a party’s counsel acting under a limited-scope mandate. The new Rule 23.04 regulates when service of documents becomes effective.

Subsection 23(4) – is amended to replace “by mail” in paragraph (b) with “courier or registered mail.” The option to send a document by regular mail is removed. Paragraphs 23(4)(a) and (b) become paragraph 23(4)(a). Paragraph 23(4)(c) becomes paragraph 23(4)(b).

Subsection 23(9) – is amended by deleting “of a sheriff.” The reference to the latter only makes the text unnecessarily cumbersome, given that subsection 23(9) already provides that the certificate may be prepared by an “other authorized person in accordance with the Quebec Code of Civil Procedure.”

Documents served by fax

Rule 23.01 – is added after Rule 23; it prescribes the requirements for documents served by fax (i.e. subsection (1) – paper must be 21.5 cm by 28 cm; subsection (2) – maximum 40 pages, without the consent of the recipient; subsection (3) – information required on the cover page; and subsection (4) – creates an exception that the information required in paragraph (3)(b) is not required where the document is served on the Court Martial Administrator or the Director of Defence Counsel Services).

Documents served by email

Rule 23.02 – is added after the new rule 23.01; it sets out the terms and conditions under which service by email could be made (i.e. subsection (1) – requires consent of the parties authorizing service by electronic mail; subsection (2) – provides that the Court Martial Administrator, the counsel designated by the Director of Military Prosecutions, or the Director of Defence Counsel Services are deemed to have consented to service by electronic mail; subsection (3) – prescribes a new schedule for consent to service by electronic mail and the procedure to be followed; subsection (4) – prescribes a new schedule for withdrawal of consent by electronic mail and the procedure to be followed; and subsection (5) – specifies the time when consent to or withdrawal of service by electronic mail becomes effective).

Rule 23.03 – is added after the new Rule 23.02; it prescribes the format for documents served by email (i.e. subsection (1) – PDF or other Court-approved searchable format) and the information that the email must include (i.e. subsection (2) – title, addresses, name, number of attachments and total number of pages served).

Effective date of service

Rule 23.04 – is added after the new Rule 23.03; it prescribes when service becomes effective depending on the method of service (i.e. paragraph (a) – personally, on the day the document is delivered; paragraph (b) – by registered mail, in Canada, on the fifth day after the day of mailing; paragraph (c) – by registered mail, outside Canada, on the seventh day after the day of mailing; (d) – by courier, within Canada, on the second day after the date of mailing; (e) – by courier, outside Canada, on the fourth day after the date of mailing; (f) – by facsimile, on the date of transmission; (g) – by electronic mail, on the day on which it is sent). It should be noted that in the case of service by registered mail and courier, this new rule distinguishes between documents served in Canada and outside Canada (see paragraphs (b) to (e)).

Subsection (2) states that except for a document that is served by personal service, a document served on a holiday or after 5:00 p.m., local time at the recipient’s location, service is effective on the next business day.

Filing of documents

Subsection 23.1(1) – is replaced by a new subsection (1), which provides that documents shall be filed either at the principal office of the Registry in Ottawa or at any other registry office established by the Administrator. To avoid the need to amend the Rules every time the address changes, subsection (1) no longer provides an address. Further, this new subsection lists the acceptable methods of filing (i.e. in person, registered mail, courier, fax or electronic transmission).

Subsection 23.1(2) – is replaced by the new subsection (2), which provides that the appeal book referred to in subsection 6(5) shall not be filed with the Registry by electronic transmission.

Paragraph 23.1(4)(a) – is amended to include email address.

Subsection 23.1(4.1) – is added after subsection (4) to specify the format of documents filed by electronic transmission (i.e. PDF or other Court-approved electronically searchable format) and the information that should accompany an electronically transmitted document (i.e. paragraph (a) – document title; and paragraph (b) – sender’s contact information).

Subsection 23.1(4.2) – is added after new subsection 23.1(4.1); it specifies the requirements in relation to electronic filing of a document (i.e. filing one paper copy and, if required by the Court, providing additional paper copies).

Subsection 23.1(5.1) – is added to clarify that the Administrator shall verify whether the document filed is in the form required by the Rules before dating it. In addition, the new subsection (5.1) requires the Administrator to send any document that is not in the form required by the Rules to a judge for directions.

Applications, motions and notices

Subsection 25(1) – the English version is amended by adding the phrase “or a petition referred to in subsection 13.1(1)” after “other than an application referred to in subsection 12(1).” This amendment is required because the application for a new trial under subsection 13.1(1) is made by way of a “petition,” rather than by way of an “application.”

Heading — Evidence and Witnesses

Heading preceding Rule 32 – Evidence and Witnesses – is replaced by “Witnesses and New Evidence.” This amendment is necessary because contrary to what the French version of the heading seems to suggest, new evidence presented at an appeal hearing could be by means of evidence other than testimony (i.e. documentary evidence). Moreover, both the heading and the wording of subsection 32(1) in the English version seem to recognize this possibility. In the English version, the word order in the heading is changed (i.e. “Evidence and Witnesses” is replaced by “Witnesses and New Evidence”) to be consistent with the French version.

Evidence and witnesses

Subsection 32(1) – the word “hearing” is replaced with “presentation” to be consistent with the intent that new evidence could be introduced at an appeal hearing by means other than a testimony (i.e. documentary evidence).

Rule 33 and subsection 34(1) – are amended by replacing “Federal Court Rules (1998)” with “Federal Courts Rules,” which is the title currently in effect.

Omnibus amendments

In order to standardize the language, the word “facsimile” is replaced by “fax” throughout the English version of the Rules.

Schedules

Notice of limited scope representation

Schedule 7.1 – is added; parties wishing to be represented by counsel under a limited mandate must use this new schedule.

Notice to cease limited scope representation

Schedule 7.2 – is added; counsel who no longer provides the party with limited scope representation must notify the parties by means of this schedule.

Notice of consent to service by email

Schedule 7.3 – is added; parties consenting to service by email must express their consent under this schedule.

Notice of withdrawal of consent to service by email

Schedule 7.4 – is added; parties withdrawing their consent to service by email must express their withdrawal of consent under this schedule.

Affidavit of service

Schedule 8 – The French version is amended by adding at the end of the first paragraph “(sélectionner l’énoncé applicable parmi les suivantes et l’inclure dans le corps de l’affidavit)”; the English version is amended by deleting the words “which” and “is appropriate and include it” at the end of the first paragraph and by adding the words “one” and “to include.” In addition, both the French and the English version introduce the option for service by email. Lastly, the option to serve a document by ordinary mail is removed.

Counsel’s certificate of service

Schedule 9 – The first paragraph of the French version is amended by (1) replacing the words “ou autre” with “le requérant, ou l’intimé,” because the phrase “ou autre” is vague, and there are only three possibilities; and (2) the rephrasing of the text “pour le compte de (désigner la partie pour le compte de laquelle le document est signifié)” to read as “et, le cas échéant, le nom de la personne ayant reçu signification pour le compte de la partie” to eliminate the conceptual divergence that currently exists between the French and English versions. The first paragraph of the English version is amended by (1) replacing the word “or” with a comma after the word “appellant”; and (2) adding “or respondent” after the word “applicant,” which was missing. In both versions, the signature block is amended to include the requirement to provide the counsel’s mailing and email addresses.

Regulatory development

Consultation

The Rules Committee met four times in Ottawa. At Rules Committee’s initial meeting, the members were provided with an overview of the Act, the Rules and the rules amendment process. The Rules Committee agreed on a work plan that involved an issue identification phase, an analysis phase and an amendment development phase.

In the issue identification phase, four subcommittees were formed to identify the need for amendments driven by (1) changes in legislation; (2) jurisprudential developments; (3) gaps and shortcomings identified; and (4) technology. The issue identification subcommittees reports were used to identify specific rules and issues for the Rules Committee’s consideration. Each identified issue was discussed by the Rules Committee, and a position was adopted on whether amendment was necessary. When a consensus was reached on the need for an amendment, the Rules Committee examined the proposed wording. A number of identified issues were both straightforward and non-contentious. Those issues were directly referred for initial drafting.

The Rules Committee also invited all members of the Court, by way of an email, to provide any input on Rule-related concerns for the Rules Committee’s consideration.

At the conclusion of the Rules Committee’s third meeting, it was obvious that issues relating to publicly funded representation (Rules 19 and 20), electronic service (Rule 23) and electronic filing (Rule 23.1) would require more analysis prior to a position being adopted. The Rules Committee initially established three subcommittees to examine these issues, but later combined the electronic service and electronic filing subcommittees into one subcommittee due to the overlapping nature of the issues.

The final report of the Rules Committee was presented to the Chief Justice on December 15, 2016. The report sets out the Rules Committee’s recommendations on an issue-by-issue basis. A recommendation was made for each issue. The proposed procedural changes were recommended by the Rules Committee.

The Rules Amending the Court Martial Appeal Court Rules were prepublished on February 12, 2022, in the Canada Gazette, Part I, for a 60-day comment period. Stakeholders have provided a few comments; they are summarized as follows:

This proposed change has been accepted and will be included in the amended Rules.

It may not always be clear to the opposing party or the Court when a limited-scope mandate is completed. Therefore, it would promote greater clarity and certainty for all parties and the Court to require Notice when the limited-scope mandate ended. The mandate would end once the Notice has been served on the other party and filed with the Court. This would make it clear to the Court and the opposing party when the limited scope mandate will end.

This proposed change has been accepted and will be included in the amended Rules.

Modern treaty obligations and Indigenous engagement and consultation

The amendments will have no impact on modern treaty obligations. The amended Rules are intended to improve access to justice and provide all parties before the Court with more flexibility (i.e. electronic service, electronic filing, reduced number of copies of documents filed if the party opts for electronic filing, limited scope representation, etc.), including for parties who are First Nations, Métis, or Inuit.

Instrument choice

Subsection 244(1) and section 248.82 of the Act provide that Chief Justice of the Court may, with the approval of the Governor in Council, make rules relating to the functioning of the appeal process and the exercise of the Court’s powers and duties. The rules established by the Chief Justice and codified in the Rules govern the Court’s practice and procedure. From time to time, the Chief Justice of the Court also enacts practice directions to provide the profession with the interpretation of the Rules and provide guidance on matters of practice that are not set out fully in the Rules. That being said, only the Rules have the force of law. In addition, practice directions are less visible and are sometimes hard to find. Considering the scope of the amendments, it is therefore preferable to proceed by way of amendment of the Rules. This instrument provides for

Regulatory analysis

Benefits and costs

Electronic service and filing

The Government, as a party to proceedings before the Court, as well as private litigants, incur costs when preparing and shipping photocopies of documents. These costs may be reduced because the amendments will allow parties to file one electronic copy of a document followed by a paper copy, instead of five paper copies. In addition, parties would have the option of serving documents in electronic format instead of serving paper copies.

The reduced number of paper documents would result in reduced shipping costs for all parties, including the Courts Administration Service (CAS), and storage costs. The proposed amendments should also reduce the costs associated with preparing the various documents filed in Court proceedings.

Hybrid hearings

The amendments will allow hearings to be held, in whole or in part, by telephone or videoconference. That being said, considering that the Court’s proceedings concern penal and criminal offences, the general rule is that hearings should be conducted in person. On a more exceptional basis, and where the circumstances and nature of the case so permit, it will be possible to hold a hearing remotely, in whole or in part.

A remote hearing — where the circumstances and nature of the case so permit — enables the parties and counsel to participate in a more economical manner. Virtual hearings have the potential to mitigate or eliminate the burden of travelling to courthouses and to reduce the costs associated with the participation of the parties and their counsel in hearings before the Court.

Limited mandate

Until the coming into force of the amendments, the Rules allowed a party only to be self-represented or else fully represented by a lawyer, yet some litigants cannot afford a lawyer’s fees for an unlimited mandate (i.e. for the whole Court proceeding). Public research studies show that the primary reason for self-representation is financial, and other research demonstrates that representation by a lawyer is a key factor driving successful litigation outcomes. That being said, the majority of parties involved in proceedings before the Court are represented by a lawyer appointed free of charge by Defence Counsel Services.

The amendments will allow a party to be represented by a lawyer on a defined, limited mandate (i.e. for only part of the Court proceeding). This option may increase a party’s chances of a successful litigation outcome.

Representation by a lawyer will also facilitate a more efficient proceeding for the Court, Registry, and parties, because self-represented parties often have limited understanding of and experience with Court practice and the Rules. Furthermore, in addition to providing benefits to the judicial process overall, the amendments will provide additional opportunities for lawyers. Empirical research on limited scope representation initiatives in other jurisdictions indicates that stakeholders are overall satisfied with the initiative. That said, some lawyers are of the view that a full mandate would provide better results for their clients and for the justice system.

Costs associated with the amendments

The costs associated with the amendments will be minimal. More specifically, there would be no additional costs arising from the implementation of the amendments. The preparation of communications for the legal profession, the update of websites and the preparation of information circulars for CAS employees concerning the amendments were finalized primarily by CAS employees.

Amendments to the procedural rules

The amendments will also clarify the procedure to which parties are subject in proceedings before the Court.

Small business lens

Analysis under the small business lens determined that the amendments will not impact small businesses in Canada

One-for-one rule

The one-for-one rule does not apply because there will be no impact on businesses.

Regulatory cooperation and alignment

The amendments are not related to a work plan or commitment under a formal regulatory cooperation forum.

Although there is policy alignment between the amendments and the initiatives of certain provinces, it is noted that each province has adopted a unique framework that fits within its particular procedural rules. Consequently, the implementation of the procedural rules varies from one province to another.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No impacts relating to the gender-based analysis plus (GBA+) were noted in the proposal. Consequently, no group within the GBA+ analytic framework is expected to be disproportionately affected by the amendments.

Implementation, compliance and enforcement, and service standards

The amended rules will come into force on the day on which they are published in the Canada Gazette, Part II.

Contact

Adrian Bieniasiewicz
Senior Counsel
Federal Court of Appeal and Court Martial Appeal Court of Canada
Ottawa, Ontario
K1A 0H9
Telephone: 613‑948‑3540
Fax: 613‑943‑0354
Email: A.Bieniasiewicz@cas-satj.gc.ca