Enforceable Rules for Court Martial Procedure

Summary#

This is a proposal by the Chief Military Judge to make formal, enforceable court rules called the Rules of Practice and Procedure of the Chief Military Judge under the National Defence Act. If adopted, the rules would replace long-standing informal practice and set clear steps for things like serving documents, pre-trial conferences, applications, interpreter requests, and public access; interested people can comment within 30 days of the notice (published April 27, 2024).

What it does#

• Makes one set of enforceable rules that apply to all proceedings under the National Defence Act that are heard by a military judge.
• Requires parties to give copies of laws and decisions they rely on to all other parties and the presiding judge.
• Sets allowed ways to serve documents: personal service, registered mail, fax or email. Email service requires consent and must use PDF attachments.
• Limits sending long faxes: documents over 50 pages should not be faxed without consent.
• Creates deadlines and scheduling steps for courts:
  • the Court Martial Administrator must contact parties to set a coordinating conference no later than 45 days after receiving the charge sheet, and the conference must be held within 15 days of that contact.
  • applications generally must be served at least five days before the proposed hearing; replies must be provided no later than the day before the hearing.
  • for alternate (remote) custody hearings, parties must provide documents by the day before the hearing.
• Sets forms and basic content required for common steps (consent to email, notices, applications, withdrawals, requests for access to exhibits, etc.).
• Requires written notice if the prosecutor is substituted, and rules for when defence counsel withdraws.
• Allows members of the public to request access to exhibits or documents from ongoing proceedings; the presiding military judge decides whether to allow access.
• If approved, the rules would come into force the day they are published in the Canada Gazette, Part II.

Who's affected#

• Military judges who preside over courts martial and other proceedings.
• Accused members of the Canadian Armed Forces and their counsel.
• Director of Military Prosecutions and prosecutors who appear at courts martial.
• Director of Defence Counsel Services and defence counsel appointed through that office.
• The Court Martial Administrator, court reporters, and other court staff who handle scheduling and service.
• Members of the public who might request access to exhibits or transcripts.
• The Department of National Defence and the broader military justice system (procedures used day to day).

Why it matters#

• It moves long-standing informal practices into a single, enforceable rule set. That can strengthen judicial independence by taking negotiation of routine procedures out of the hands of parties appearing before the judge.
• Clear time limits and standard forms could reduce delays and make proceedings more predictable for accused people, counsel and prosecutors.
• Standard rules for electronic service and for requests (interpreters, access to exhibits) reflect modern court practices and could make communication and access easier.
• The change is a proposal (not yet law). People and organizations can comment during the consultation period described in the notice.