Scope of Application

Proceedings under National Defence Act

1 These Rules apply to all proceedings under the National Defence Act that are presided over by a military judge.

Definitions

Marginal note:Definitions

2 The following definitions apply in these Rules.

Act means the National Defence Act. (Loi)

counsel means a barrister or advocate with standing at the bar of a province. (avocat)

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

party means the prosecutor, the accused person or any other person who is designated as a party to the proceeding. (partie)

Queen’s Regulations and Orders means the Queen’s Regulations and Orders for the Canadian Forces. (Ordonnances et règlements royaux)

Citation of Statutes, Regulations and Other Authorities

Marginal note:Authorities to be provided

3 (1) A party who intends to rely on statutes, regulations or other authorities in any oral or written argument in a proceeding must provide a copy of them to every other party and to the presiding military judge.

• Marginal note:Exception

  (2) Despite subsection (1), a party is not required to provide a copy of the Constitution Act, 1982, the National Defence Act, the Criminal Code, the Canada Evidence Act or the Controlled Drugs and Substances Act.

• Marginal note:Indicating relevant portions

  (3) The party must indicate the relevant portions of each statute, regulation or authority by highlighting them or by placing a vertical line in the margin next to them.

• Marginal note:Decision on electronic database

  (4) If the party intends to rely on a decision that is publicly available on an electronic database, every reference to that decision in their arguments must be to the decision as published on that database.

Service of Documents

General

Marginal note:Means

4 Service of a document must be effected by personal service, registered mail, fax or email.

Marginal note:When service is effective

5 Service of a document is effective

• (a) if it is served by personal service, on the day on which the document is left with the person being served or their authorized representative;

• (b) if it is served by registered mail, on the day of delivery that is indicated on the post office delivery receipt;

• (c) if it is served by fax, on the day of transmission that is indicated on the transmission confirmation receipt; and

• (d) if it served by email, on the day on which the document is received by the person being served.

Service by Fax

Marginal note:Format

6 A document that is served by fax must be printed on letter size paper.

Marginal note:Over 50 pages

7 A document that is more than 50 pages in length must not be served by fax without the recipient’s prior consent.

Marginal note:Cover sheet

8 A document that is served by fax must have a cover sheet that sets out the following information:

• (a) the name, address and telephone number of the party who is serving the document;

• (b) the date and time of the transmission;

• (c) the total number of pages transmitted, including the cover page; and

• (d) the name and telephone number of a person to be contacted in the event of a transmission problem.

Service by Email

Marginal note:Consent required

9 A party must not serve a document by email until the recipient gives consent in accordance with section 10 or after the recipient withdraws that consent in accordance with section 11.

Marginal note:Consent to service by email

10 (1) Subject to subsection (2), a party consents to the service of documents by email by providing the Court Martial Administrator with a consent to service by email as set out in Form 1 of the schedule and serving it on every other party.

• Marginal note:Exception

  (2) Counsel appointed by either the Director of Military Prosecutions or the Director of Defence Counsel Services is deemed to have given prior consent to be served with documents by email, however, that consent may be withdrawn in accordance with section 11.

• Marginal note:When consent is effective

  (3) The consent is effective on the day on which the Form 1 is served.

• Marginal note:Withdrawal of consent

11 (1) A party withdraws their consent to the service of documents by email by providing the Court Martial Administrator with a withdrawal of consent to service by email as set out in Form 2 of the schedule and serving it on every other party.

• Marginal note:When withdrawal is effective

  (2) The withdrawal of consent is effective on the day on which the Form 2 is served.

Marginal note:Requirements

12 A document that is served by email must be in PDF (Portable Document Format) and the email to which the document is attached must set out the following information:

• (a) the name, address, telephone number and email address of the party who is serving the document;

• (b) the name of the party who is being served with the document and, if applicable, their counsel;

• (c) the date and time of the email transmission; and

• (d) the title of each document that is being served, the number of attachments and, for each attachment, the number of pages.

Proof of Service

Marginal note:When proof of service required

13 A party must provide proof of service of a document in accordance with subsection 14(1) if it is expressly required to be provided by these Rules or if the presiding military judge, having determined that it is necessary for the party to prove that service of the document occurred, directs the party to provide proof of service.

Marginal note:Proof of service

• 14 (1) Service of a document is proven by

  • (a) a certificate of service as set out in Form 3 of the schedule;

  • (b) an affidavit or other document demonstrating service that, in accordance with the laws of the jurisdiction in which the service was effected, is provided by the person who effected the service;

  • (c) a written acknowledgment of service provided by the person served or their counsel; or

  • (d) an acknowledgement or acceptance of service provided by the person served or their counsel while in open court before the presiding military judge.

• Marginal note:Delivery and confirmation receipts

  (2) If a document is served by registered mail, fax or email, a certificate of service for that document must be accompanied by one of the following documents, as the case may be,

  • (a) a copy of the post office delivery receipt that indicates the day on which the document was delivered by registered mail; or

  • (b) the transmission confirmation receipt that indicates the date and time of the transmission of the document by fax or email.

• Marginal note:No further proof required

  (3) Despite these Rules, a party is not required to provide proof of service for a document if an acknowledgment or acceptance of service of the document is provided under paragraph 1(d).

Custody Review Hearing

Marginal note:Representative of the Canadian Forces

15 In sections 16 to 18, representative of the Canadian Forces has the same meaning as in paragraph 105.27(1) of the Queen’s Regulations and Orders.

Marginal note:Notice of release by custody review officer

16 If the custody review officer referred to in section 158.2 of the Act does not direct that the person in custody be released, the representative of the Canadian Forces must notify the Court Martial Administrator of that decision as soon as practicable after it is made.

Marginal note:Information provided by custody review officer

17 For the purpose of a hearing referred to in section 159 of the Act, the custody review officer must, by the most rapid and practical means, provide the representative of the Canadian Forces, the person in custody and the Court Martial Administrator with the following information:

• (a) the service number, rank and name of the person in custody;

• (b) a list setting out each charge that has been laid against the person in custody and, for each charge, information indicating whether it is a designated offence as defined in section 153 of the Act;

• (c) the date and time when the person was committed to custody;

• (d) information indicating whether the person in custody has retained or has requested counsel or whether they have chosen not to be represented by counsel;

• (e) the location where the person is being retained in custody;

• (f) the rank, name and telephone number of the person who is responsible for the person in custody;

• (g) the service number, rank, name and telephone number of the custody review officer;

• (h) the date on which the custody review officer’s review of the report of custody and the accompanying documents was completed for the purposes of subsection 158.2(1) of the Act;

• (i) the rank, name and telephone number of the representative of the Canadian Forces and information that indicates that they have been notified of the request for a custody review hearing; and

• (j) the location of the video conference facility that is nearest to the location where the person is being retained in custody and the name and telephone number of the person to be contacted to reserve the facility.

Marginal note:Alternate means of hearing — information and documents

• 18 (1) If the military judge directs that the custody review hearing be held, in whole or in part, by means of a telecommunications device, the parties must provide information and documents to the Court Martial Administrator as follows:

  • (a) each party must provide the evidence that the party intends to present at the hearing and a copy of all statutes, regulations and other authorities on which they intend to rely at the hearing; and

  • (b) together with the information and documents referred to in paragraph (a), the representative of the Canadian Forces must provide a copy of the report of custody referred to in subsection 158.1(1) of the Act and the accompanying documents referred to in subsection 158.1(5) of the Act.

• Marginal note:Time limit

  (2) The information and documents must be provided no later than the day before the day on which the hearing is scheduled to be held.

Coordinating Conference

Marginal note:Matters to be discussed

19 (1) In the case of a court martial there must be a coordinating conference, held between the parties and the military judge that is assigned for that purpose, in order to schedule the trial and to discuss any matters that may impact its duration.

• Marginal note:Scheduling the conference

  (2) The Court Martial Administrator must contact the parties to schedule the coordinating conference no later than 45 days after the day on which the Court Martial Administrator receives the charge sheet that is referred to in subsection 165(2) of the Act. However, if the proceeding is one in which the accused person may choose the type of court martial under section 165.193 of the Act, the time period begins on the later of

  • (a) the day on which the Court Martial Administrator receives the charge sheet that is referred to in subsection 165(2) of the Act, and

  • (b) the day on which the Court Martial Administrator receives the completed confirmation of delivery in the form referred to in paragraph 111.023(3) of the Queen’s Regulations and Orders.

• Marginal note:Holding the conference

  (3) The coordinating conference must be held no later than 15 days after the day on which the parties are contacted under subsection (2).

• Marginal note:Means

  (4) The coordinating conference is to be held by telephone unless, after consultation with the parties, the military judge directs that it be held by means of any other telecommunications device or in person.

Pre-trial Conference

Marginal note:Direction

20 (1) The presiding military judge may, at the request of a party or on his or her own initiative, direct that a pre-trial conference be held.

• Marginal note:Matters to be discussed

  (2) At a pre-trial conference, the parties must be prepared to discuss matters of law or evidence that are at issue in the trial or any other matter that could facilitate the trial.

• Marginal note:Means

  (3) A pre-trial conference is to be held by telephone unless, after consultation with the parties, the presiding military judge directs that the conference be held by means of any other telecommunications device or in person.

Interpreter

Marginal note:Written request

21 A request by a party under the Official Languages Act for an interpreter at the hearing of a court martial or any other proceeding before a military judge must be provided in writing to the Court Martial Administrator as soon as is practicable before the hearing begins.

Applications

Marginal note:Form

22 (1) Subject to subsections (2) and (3), each application that is made under the Act and each notice that is given in respect of an application referred to in paragraph 112.04(1) of the Queen’s Regulations and Orders must be made as set out in Form 4 of the schedule.

• Marginal note:Plea of guilty

  (2) An application for a plea of guilty under subsection 189.1(2) of the Act must be made as set out in Form 5 of the schedule.

• Marginal note:Withdrawal of counsel

  (3) An application to withdraw as counsel for the accused person must be made in accordance with section 29.

Marginal note:Applications — general

23 (1) An application, other than one for which notice is given under paragraph 112.04(1) of the Queen’s Regulations and Orders, must contain the following information:

• (a) sufficient detail of the nature of the application and of the relief sought to enable the opposing party to respond without adjournment;

• (b) the documentary, affidavit or other evidence that the applicant intends to present at the hearing of the application;

• (c) an estimate of the time required to present the application;

• (d) the proposed time, date and location for the hearing; and

• (e) the proposed means for conducting the hearing.

• Marginal note:Time limit

  (2) The application must be served on every other party and a copy of the application, together with proof of service, must be provided to the Court Martial Administrator no later than five days before the day on which the hearing is proposed to be held.

24 (1) Notice that is given in respect of an application referred to in paragraph 112.04(1) of the Queen’s Regulations and Orders must contain the following information in addition to that required under paragraph 112.04(2) of the Queen’s Regulations and Orders:

• (a) the proposed time, date and location for the hearing; and

• (b) the proposed means for conducting the hearing.

Marginal note:Copy to Court Martial Administrator

(2) Subject to subsection (3) and in addition to the requirements of paragraph 112.04(1) of the Queen’s Regulations and Orders, a copy of the notice must be provided to the Court Martial Administrator no later than five days before the day on which the hearing is proposed to be held.

• Marginal note:Plea of guilty

  (3) In addition to the requirements of paragraph 112.04(1) of the Queen’s Regulations and Orders, notice that is given in respect of an application for a plea of guilty under subsection 189.1(2) of the Act must be served on the prosecutor and a copy of it provided to the Court Martial Administrator no later than five days before the day on which the accused person is ordered to appear before the court martial.

• Marginal note:Written reply to application

25 (1) A respondent who makes a written reply to an application must make the reply as set out in Form 6 of the schedule and set out the following information:

• (a) the respondent’s position with respect to the matters raised in the application, indicating the matters that are at issue, the grounds of argument and those matters which the respondent does not dispute;

• (b) the documentary, affidavit or other evidence that the respondent intends to present at the hearing of the application; and

• (c) an estimate of the time required to present the reply to the application.

• Marginal note:Time limit

  (2) The reply must be provided to the Court Martial Administrator and every other party no later than the day before the day on which the application is scheduled to be heard.

Marginal note:Withdrawal of application

26 An applicant who seeks to withdraw their application before it is heard must

• (a) identify that application in a notice of withdrawal as set out in Form 7 of the schedule; and

• (b) provide a copy of the notice of withdrawal to every other party and the Court Martial Administrator before the day on which the application is scheduled to be heard.

Substitution of Prosecutor

Marginal note:Written notice required

27 If the Director of Military Prosecutions substitutes the prosecutor in a proceeding, the Director must provide the Court Martial Administrator with written notice of the substitution as soon as possible after it occurs.

Withdrawal of Counsel for Accused Person

Marginal note:Notice of withdrawal

28 If counsel for the accused withdraws from the proceeding before the court martial is convened, they must

• (a) serve notice of their withdrawal, as set out in Form 8 of the schedule, on the accused person and on the Director of Military Prosecutions; and

• (b) provide a copy of the notice to the Court Martial Administrator, together with proof of service, no later than five days after the day on which service of the notice is effected.

Marginal note:Application to withdraw

29 (1) Unless the presiding military judge directs otherwise, if counsel for the accused person seeks to withdraw from the proceeding after the court martial is convened, they must provide the Court Martial Administrator with an application to withdraw as counsel for the accused person, as set out in Form 9 of the schedule, that sets out the following information:

• (a) the date on which the court martial was convened;

• (b) the reason why counsel seeks to withdraw from the proceeding;

• (c) the documentary, affidavit or other evidence that the applicant intends to present at the hearing of the application;

• (d) an estimate of the time required to present the application;

• (e) the proposed time, date and location for the hearing; and

• (f) the proposed means for conducting the hearing.

• Marginal note:Time limits

  (2) Counsel for the accused person must

  • (a) serve the application on the following persons no later than five days before the day on which the application is proposed to be heard:

    • (i) the accused person,

    • (ii) the Director of Military Prosecutions,

    • (iii) if counsel for the accused person was appointed by the Director of Defence Counsel Services, the Director of Defence Counsel Services, and

    • (iv) every other person who is designated as a party to the proceeding; and

  • (b) provide a copy of the application to the Court Martial Administrator, together with proof of service, no later than the day before the day on which the application is proposed to be heard.

• Marginal note:Written reply to application

  (3) A respondent who makes a written reply to an application referred in this section must make the reply in accordance with section 25.

Public Access to Exhibits, Documents and Other Things

Marginal note:Access request — ongoing proceeding

• 30 (1) A member of the public may make a request to the presiding military judge for access to an exhibit, document or other thing connected with an ongoing proceeding, other than information relating to a warrant that is subject to section 196.25 of the Act.

• Marginal note:Request to court reporter

  (2) The request must be made as set out in Form 10 of the schedule and be provided to the court reporter.

• Marginal note:Granting access

  (3) Subject to any conditions that the presiding military judge considers just, the judge must grant access to an exhibit, document or other thing requested under subsection (1) if, after taking the public interest in open and accessible court proceedings into account, the judge concludes that access will not subvert the ends of justice or unduly impair its proper administration.

Coming into Force

Marginal note:Canada Gazette, Part II

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