SOR/2022-920221
31
20259
30
NATIONAL DEFENCE ACTRules of Procedure for Hearings Before the Military Police Complaints Commission, 2022The Chairperson of the Military Police Complaints Commission, pursuant to section 250.15a of the National Defence Actb, makes the annexed Rules of Procedure for Hearings Before the Military Police Complaints Commission, 2022.S.C. 1998, c. 35, s. 82R.S., c. N-5Ottawa, January 31, 2022La présidente par intérim de la Commission d’examen des plaintes concernant la police militaireBonita ThorntonInterim Chairperson of the Military Police Complaints Commission
GeneralInterpretation
DefinitionsThe following definitions apply in these Rules.Act means the National Defence Act. (Loi)Commission counsel means counsel designated by the Chairperson of the Complaints Commission for the purposes of a hearing. (avocat de la Commission)counsel means a member of the bar of a province. (avocat)day means a calendar day. (jour)document means a submission, affidavit or any other documentary material, regardless of physical form or medium, including any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape and machine readable record, and any copy, in whole or in part, of that material. (document)electronic transmission includes transmission by email or by means of the Complaints Commission’s website, but does not include transmission by fax. (transmission électronique)file means to file with the Registrar. (déposer)intervenor means a person who is granted leave by the Complaints Commission to intervene at a hearing in accordance with section 44. (intervenant)party means a complainant or a person who is the subject of a complaint and any other person who satisfies the Complaints Commission that they have a substantial and direct interest in the hearing under section 250.44 of the Act. (partie)person includes an individual, a corporation, a partnership and an unincorporated association. (personne)Registrar means the Registrar of the Complaints Commission. (greffier)
Application
ApplicationThese Rules apply to all hearings conducted under subsection 250.38(1) of the Act.
Purpose
PurposeThe purpose of these Rules is to enable the Complaints Commission to act fairly, effectively and expeditiously and to conduct its proceedings in a manner proportional to the significance of the issues and the complexity of the complaint before it and the public interest, including through the efficient use of public resources.
Matter not provided for in RulesIf a matter is not provided for in these Rules, the practice it is to be determined by reference to the purpose of these Rules and any practice directions issued under section 29.
Non-compliance with Rules
Effect of non-complianceA failure to comply with these Rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity.Commission may grant reliefIf there is a failure to comply with a rule, the Complaints Commission may grant any relief that it considers necessary to achieve the purpose of these rules.
Varying Rules
Varying or supplementing rulesThe Complaints Commission may vary or supplement a rule, or dispense with compliance with a rule in whole or in part, in order to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit.NoticeIf the Complaints Commission varies or supplements these Rules or dispenses with compliance with all or part of them, it must inform the parties and intervenors.
Computation of Time
Interpretation ActThe computation of time under these Rules or under an order of the Complaints Commission or a decision of the Registrar is governed by sections 26 to 29 of the Interpretation Act.
Extension or abridgementThe Complaints Commission may, on motion, extend or abridge a period provided for by these Rules.AffidavitThe affidavit in support of a motion for an extension or abridgement of time must set out the reason for the delay or urgency, as the case may be.
DocumentsMemorandum of Fact and Law
ContentsA memorandum of fact and law must contain a table of contents and, in consecutively numbered paragraphs,a concise statement of fact;a statement of the points in issue;a concise statement of the submissions;a concise statement of the order sought;a list of the authorities, statutes and regulations to be referred to; andin an appendix and, if necessary as a separate document, a copy of the authorities or relevant excerpts and any statutory provisions cited or relied on that have not been reproduced in the memorandum of another party or intervenor.
Submission to CommissionAt the end of the hearing, the parties must submit their memorandum of fact and law to the Complaints Commission.
Service
Means of serviceService of all documents is effectedin the case of an individual, by leaving a copy of the document with that individual;in the case of a partnership, corporation or unincorporated association, by leaving a copy of the document with a partner, officer or director; andin the case of a person referred to in paragraphs (a) or (b) who is represented by counsel, by leaving a copy of the document with counsel with the proof of service referred to in section 11.Other means of serviceService of a document is also effected by sending a copy of the document by electronic transmission in accordance with subsection (3), by fax transmission in accordance with subsection (4), by registered mail, or by any other means the Complaints Commission orders.Service by electronic transmissionA document that is served by electronic transmission must be accompanied by an electronic message setting outthe sender’s name, telephone number, email address and mailing address;the name of the person being served;the date and time of the transmission;the title or description of the document being transmitted; andthe name, telephone number and email address of the person to be contacted if transmission problems occur.Service by faxA document that is served by fax must be accompanied by a cover page setting outthe sender’s name, telephone number, fax number, email address and mailing address;the name of the person being served;the date and time of the transmission;the total number of pages being transmitted, including the cover page;the title or description of the document being transmitted; andthe name, telephone number and email address of the person to contacted if transmission problems occur.Format — electronic transmissionA document that is served by electronic transmission must be in PDF (Portable Document Format) or any other format allowed by the Complaints Commission.Service after 5 p.m.A document that is served by electronic transmission or by fax after 5 p.m. at the recipient’s local time is deemed to have been served on the next day that is not a Saturday or a holiday.
Deemed servedIf a document has been served in a manner not authorized by these Rules or by an order of the Complaints Commission, the Complaints Commission may, on motion, order that a document be deemed validly served if it is satisfied that the document came to the notice of the recipient or that it would have come to that person’s notice were it not for the person’s avoidance of service.
Proof of serviceService of a document is proved by:an acknowledgement of service signed by or on behalf of the recipient; oran affidavit of service stating the name of the person who served the document and the date, place and manner of service.Delivery receiptThe affidavit of service for a document that was served by electronic transmission, fax or registered mail must include a receipt confirming that the document was successfully delivered to the recipient.Retaining proofA person serving documents under these Rules must maintain the proof referred to in subsections (1) and (2) that the document was served in accordance with section 9 and must produce that proof to the Complaints Commission on request.
Filing of Documents
Service before filingA document that is required to be filed under these Rules may be filed only if a copy of that document has been served on each party and any intervenors.Proof of serviceWhen a document referred to in subsection (1) is filed, it must be accompanied by proof of service that meets the requirements of section 11.
Electronic filingThe parties and intervenors must file their documents by electronic transmission.Alternative means of filingThe Complaints Commission may, if it considers that it is justified in the circumstances, allow paper filing or fax filing.
Format – electronic transmissionA document that is filed by electronic transmission must be in either PDF (Portable Document Format) or any other format allowed by the Complaints Commission.Filing after 5 p.m.A document that is filed by electronic transmission or fax transmission after 5 p.m. standard time is deemed to have been filed on the next day that is not Saturday or a holiday.
Format — paper filingSubject to subsection (2), only those documents that are printed on letter size paper and that have numbered pages may be filed.Format — non-standardIf a document is not printed on letter size paper and cannot be reasonably converted to that format by the person filing it, it may be filed in its existing format.
OriginalFor the purposes of any oral or written hearing, the electronic version of a document filed by electronic transmission is deemed to be the original.Production of originalIf the Complaints Commission requests to examine the original of any document filed, the party or intervenor who filed it must produce it.
Irregularity or defectAt any time before the Complaints Commission sends its report under section 250.48 of the Act, it may draw the attention of a party to any irregularity or defect of a document and permit the party to remedy it on any conditions that the Complaints Commission considers fair.
Statement under oath or solemn affirmationA statement made under oath or solemn affirmation may be filed by electronic transmission if a scanned version of the statement is filed along with a document attesting to the following:that the document sent by electronic transmission is an electronic version of a paper document that has been signed by the person making the oath or solemn affirmation; andthat the signed paper document is available and will be produced on the Complaints Commission’s request.Retaining document in paper formatThe statement made under oath or solemn affirmation must be retained in paper format by the party or intervenor filing it for one year after the final report is issued.Production of the originalIf the Complaints Commission requests to examine the original of the statement made under oath or solemn affirmation, the party or intervenor who filed it must produce the original signed document for review.
Certified electronic copyIf a document is filed by electronic transmission and a copy certified by the Registrar or a person designated by the Registrar is requested from the Complaints Commission, the Registrar may provide a paper copy of the electronic document stamped “certified copy”.
Official Record of Hearings
Official record of hearingThe Complaints Commission must keep, in the original and official record of a hearing, all documents in the format in which they were filed.
Public consultationSubject to any confidentiality order made under section 55, the public may consult, in a format determined by the Registrar, documents that have been received in evidence in the public record.Private hearingsDocuments filed with the Complaints Commission in respect of a private hearing do not form part of the public record.
Composition of Panel for HearingsComposition and Chairperson of Panel
Composition of panelFor the purposes of section 250.4 of the Act, the member or members of the Complaints Commission who are assigned by the Chairperson of the Complaints Commission make up the panel that is to hold hearings under subsection 250.38(1) of the Act.
Designation of ChairpersonThe Chairperson of the Complaints Commission must designate, from among the members of the panel, a person who will act as Chairperson of the panel and who will be responsible for the management of day-to-day business, including communications between the panel and the Complaints Commission and between the panel, parties and intervenors.
Absence, Incapacity or Vacancy
Absence, incapacity or vacancyIn the event of the absence or incapacity of a member of the panel or if a position on the panel is vacant, the hearing may continue with the remaining members of the panel or the Chairperson of the Complaints Commission may assign one or more additional members to the panel.Single memberIn the event of the absence or incapacity of the Chairperson of a panel composed of only one member, the Chairperson of the Complaints Commission may assign one or more members of the Complaints Commission to the panel to conduct the hearing.Panel not voidThe absence or incapacity of a member of the panel or the vacancy of a position on the panel does not invalidate the proceeding.
New Member
Assignment of new memberIf the Chairperson of the Complaints Commission assigns a new member under subsection 23(1) or (2), the following rules apply:the parties and intervenors must make submissions to the Chairperson of the Complaints Commission as to how the hearing should proceed; andthe Chairperson of the Complaints Commission may, after considering the submissions and taking into account the interests of justice and the purpose of these Rules, establish the procedure for the hearing, including the rehearing of evidence or the use of transcripts of evidence given to date.
Decision Making
Majority of votesA matter before a panel is decided by a majority of the members, but in the case of a tie, the Chairperson of the panel has the deciding vote.
Interim or Preliminary Questions
Chairperson of panel or delegateThe Chairperson of the panel or their delegate may, at any time during a proceeding, determine any interim or preliminary question, including a motion, and may exercise any powers of the Complaints Commission necessary to determine the question.
Questions To Be Determined
Question of law, jurisdiction, practice or procedureAt any time during a proceeding, the Complaints Commission may determine any question of law, jurisdiction, practice or procedure and may stay a proceeding in whole or in part until the question is determined.
Reference to Federal CourtThe Complaints Commission may, in accordance with section 18.3 of the Federal Courts Act, refer any question of law, of jurisdiction or of practice or procedure to the Federal Court for hearing and determination.Powers of CommissionIn the event of a reference to the Federal Court, the Complaints Commission may, subject to the direction of the Court,proceed to hear evidence relevant to all questions except those that have been referred to the Court; orstay the hearing as it relates to the questions that have been referred to the Court and reserve its decision pending the decision of the Court.
Practice Directions
AuthorityThe Complaints Commission may issue practice directions that are consistent with these Rules and their purpose.TechnologyThe Complaints Commission may issue directions requiring the use of any electronic or digital means of communication, storage or retrieval of information or any technology that it considers appropriate to facilitate the conduct of a hearing or a case management conference.
Proceedings
Transcription or recording — proceedingsThe Complaints Commission may transcribe or record its proceedings.Record — proceedingsAny transcript or recording is a part of the record of the proceedings.
Accommodation
Notice to RegistrarAny person requiring reasonable accommodation at a proceeding must, no later than 30 days before the day on which the proceeding is to begin, provide notice to the Registrar.
Pre-hearing ProceduresHearings Respecting Similar Questions
Powers regarding similar questionsIf two or more hearings before the Complaints Commission concern the same or similar questions, the Complaints Commission maycombine the hearings or any part of them;hear the questions at the same time;hear the questions one immediately after the other; orstay one or more of the questions pending determination of one of them.Orders regarding procedureThe Complaints Commission may make orders respecting the procedure to be followed with respect to hearings.
Case Management
Case management conferencesThe Complaints Commission may conduct one or more case management conferences, which will be presided over by a member of the panel that will conduct the hearing.
Directions regarding schedulingThe Complaints Commission may issue directions with respect to the scheduling of case management conferences.
Directions regarding matters for considerationThe Complaints Commission may include in the directions referred to in section 34 a list of the matters to be considered at the case management conference and may require the filing of memoranda regarding any of those matters.Matters to be consideredMatters to be considered includethe dates, duration and location of the hearing;whether the hearing will be oral or written, or partly oral and partly written, and whether documents will be presented electronically or in paper format in the course of the hearing;any pending or anticipated motions and a deadline date for the hearing of motions;any issues of confidentiality;the identification, clarification, simplification and elimination of issues;the possibility of obtaining admissions of particular facts or documents, including an agreed statement of facts;the official language to be used for the hearing, as well as the official language in which each witness will testify, and the need for interpreters, if any;a timetable for the exchange or serving and filing of the various documents related to the hearing, including affidavits of documents, statements or summaries of anticipated evidence, joint briefs of authorities and agreed books of documents;any matter relating to pre-hearing disclosure;a timetable for the intervenors;all matters related to expert witnesses;the advisability of a pre-hearing reference or determination of a question or issue of law, of jurisdiction or of practice and procedure;any requirement for a notice of a constitutional question;a timetable for any subsequent case management conferences; andany other matters that may facilitate the conduct of the hearing.
OrderAfter each case management conference, the Complaints Commission may issue an order in writing setting out any rulings it has made relating to the matters considered at the conference.
Firm requirementsThe dates set and other requirements established by case management orders are firm.Request for variationA request for a variation must be made by motion showing that compelling reasons exist for the variation.Powers of CommissionThe Complaints Commission may vary any order made under subsection (2) if it is satisfied that compelling reasons exist for the variation.
Motions
MotionsThe procedure set out in sections 39 to 43 applies only to the following:a motion relating to the jurisdiction of the Complaints Commission;a motion to stay or dismiss a proceeding;a motion raising any constitutional questions, including questions raised under the Canadian Charter of Rights and Freedoms;a motion for a confidentiality order;a motion that a hearing or part of a hearing in a proceeding be held in private;a motion to prohibit a person from disclosing information disclosed in a hearing; andany other question that the Complaints Commission orders resolved by way of motion under sections 39 to 43.
Notice of motionA motion is commenced by a written notice of motion setting out the grounds for the motion and the order sought.ContentA notice of motion must be accompanied by any supporting affidavits.
Service of responseAny Commission counsel, party or intervenor who has been served with a notice of motion may, no later than 14 days after being served, serve a response on the other parties and any intervenors, stating the grounds on which the motion is opposed and, if applicable, any supporting affidavits.
Evidence and memorandumNo later than 14 days after the service of the response, the parties participating in the motion must serve on the other partiesany supplementary evidence to be relied on; anda memorandum of fact and law.
Testimony by affidavitSubject to subsection (2), testimony on a motion must be given by affidavit.Oral testimonyThe Complaints Commission may, before or during the hearing, grant leave for oral testimony in relation to an issue raised in the notice of motion and may, on application of any party with standing to cross-examine, permit cross-examination on affidavits.
Powers of CommissionAfter hearing a motion, the Complaints Commission maymake the order sought or any other suitable order;dismiss the motion, in whole or in part;adjourn the hearing of the motion, in whole or in part; orif the motion is heard prior to the commencement of the hearing on the merits of the proceeding to which the motion relates, adjourn the hearing of the motion so that the panel presiding at the hearing on the merits may determine it.
Intervention
Valuable contributionThe Complaints Commission may allow a person to intervene if the Complaints Commission is satisfied that the person can make a significant contribution or bring a significant perspective to the hearing, and the potential benefits of the intervention outweigh any prejudice to the parties that might be caused by the intervention.
MotionA motion for leave to intervene must be served on the parties and the intervenors along with an affidavit setting out the facts on which the motion is based.ContentA motion for leave to intervene must set outthe title of the proceedings in which the person making the motion wishes to intervene;the name and address of that person;a concise statement of the valuable contribution or perspective that the person will bring to the proceeding in light of the matters in issue in the hearing;the name of the party, if any, whose position that person intends to support;the official language to be used by that person at the hearing of the motion and, if leave is granted, at the hearing on the merits; anda description of how that person proposes to participate in the proceedings.
ResponseCommission counsel, a party or an intervenor served with a motion for leave to intervene may, within 14 days after that service, serve a response to the motion on the person making the motion and on the parties and intervenors.
ReplyA person making a motion for leave to intervene may, within seven days after the service of the response referred to in section 46, serve a reply on the Commission Counsel, the parties and intervenors.
Joint submissionsIf two or more persons making a motion for leave to intervene have the same or substantially similar expertise or perspectives, the Complaints Commission may require them to file joint submissions, or otherwise participate jointly.
Powers of CommissionThe Complaints Commission may limit the participation of an intervenor tothe cross-examination of witnesses;the right to lead evidence;the obligation to produce or disclose documents;one or more issues raised in the hearing;a portion of the hearing only;written submissions; andtime-limited oral submissions.
Intervention allowedIf a motion for leave to intervene is allowed,the Registrar must send to the intervenor a list of all documents filed in the proceedings before or on the day on which the motion for leave to intervene is allowed;on request, the intervenor may obtain copies of the documents on the list from the Registrar;Commission counsel, each party and each other intervenor must serve on the intervenor any document that is filed by them after the day on which the motion for leave to intervene is allowed; andaccess by an intervenor to a document filed or received in evidence is subject to any relevant confidentiality order of the Complaints Commission.
Production and Disclosure of Documents
Obligation of parties and intervenorsParties and intervenors must provide to the Complaints Commission all documents that are in their possession, power or control and that are relevant to the subject matter of the hearing.ConfidentialityIf a party or intervenor claims that a document is confidential or contains confidential information, or is subject to privilege or protection under sections 37 to 39 of the Canada Evidence Act, that party or intervenor must present evidence in support of each claim.Confidentiality rulingThe Complaints Commission may make a ruling on the confidentiality claim with respect to each document or piece of information, except claims for protection under sections 37 to 39 of the Canada Evidence Act, and may make such orders as it considers appropriate.Failure to provideSubject to section 77, no document or other piece of evidence that a party or intervenor seeks to use for the hearing will be received in evidence unless the party or intervenor provides copies to the Complaints Commission at least 30 days before the hearing commences.
Continuing obligation to informAny party or intervenor who has filed documents with or produced documents to the Complaints Commission and then comes into possession or control of or obtains power over a relevant document, or who becomes aware that the disclosure is incomplete or that the information contained in those documents is inaccurate, must as soon as possible notify the Complaints Commission of the new documents, the incompleteness of the disclosure, or the inaccuracy of the information.
Confidentiality of documentsDocuments produced by a party, an intervenor or any other person must be treated as confidential by the Complaints Commission unless they are made part of the public record or the Complaints Commission determines otherwise.
UndertakingsBefore a party, an intervenor or a person who may be called as a witness is provided with a document that has not yet been introduced into evidence, the Complaints Commission may require that the party, intervenor, person and their counsel provide to the Complaints Commission the form set out in Schedule 1.
Confidentiality Orders
MotionThe Complaints Commission may, on its own motion or on the motion of Commission counsel or a party or intervenor who has filed or will file a document, order that the document or information in the document be treated as confidential and may make any order that it considers appropriate.
Contents of motionCommission counsel, a party or an intervenor making a motion for an order of confidentiality mustinclude in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information;include in the motion a draft confidentiality order that contains the following elementsa description of the document, the information or the category of documents or information for which the order is sought,the names of the persons or categories of person who are entitled to have access to the confidential document or information,the document, information or category of document or information available to the persons or categories of persons referred to in subparagraph (ii),any proposed confidentiality agreement that the persons referred to in subparagraph (ii) intend to sign and the provisions of that agreement,the number of copies of confidential documents to be provided to the persons referred to in subparagraph (ii) and any limitations on subsequent reproduction of that document by those persons, andthe procedures to be followed with respect to confidential documents once the hearing is completed.
Filing without confidentiality orderA party, an intervenor or Commission counsel claiming confidentiality in a document to be filed that is not covered by a confidentiality order mustfile a public version of the document that does not include the confidential information;provide the Registrar with a version of the document marked “confidential” thatincludes and identifies the confidential information referred to in paragraph (a) that has been deleted from the public version,identifies the nature of the claim to confidentiality, anddoes not include information for which protection is claimed under theCanada Evidence Act; andbring a motion under section 55 for an order allowing them to file the confidential version.
Filing with confidentiality orderA party, an intervenor or Commission counsel who wishes to file a document containing information that is subject to a confidentiality order under section 55 must file a public version that does not include the confidential information and a confidential version with each page clearly marked “confidential” together with a reference to the date of the confidentiality order. The confidential material that has been deleted from the public version must be highlighted in the confidential version.
Witness Interviews
Interview by Commission representativeA Complaints Commission representative may interview persons who have information or documents that are likely to have a bearing on the subject matter of the hearing.Presence of counselPersons who are interviewed are entitled to have counsel present at their own expense.
Statement or summary of anticipated evidenceIf Commission counsel determines that a person will be called as a witness following an interview, Commission counsel will provide the witness’ statement if one exists or prepare a summary of the witness’ anticipated evidence.Deadline anticipated evidenceCommission counsel must provide a statement or summary of anticipated evidence to parties and intervenors, subject to confidentiality orders, at least three days before the witness testifies.Contents of summaryThe summary of the witness’s anticipated evidence must be in writing and contain the substance of the testimony of the witness, as well as a list of documents to which the witness may refer.List of documentsIf a witness refuses to be interviewed by Commission counsel before testifying, if no statement is given or if, for any reason, no summary of anticipated evidence can be prepared, Commission counsel must, at least three days before that witness is to testify, provide the parties and intervenors with the list of documents that may be presented to the witness and must highlight the portions of the documents that relate to the witness’s anticipated evidence.
Summoning of Witnesses
Power to compel witnessesAt any time after a hearing is caused to be held under paragraph 250.4(1)(a) of the Act, but before sending its written report under to section 250.48 of the Act, the Complaints Commission may issue to a witness the form set out in Schedule 2, in accordance with paragraph 250.41(1)(a) of the Act.
Conduct of HearingsInterpreter
Obligation to provide interpreterIf a witness does not understand the language in which their examination at the hearing is being conducted, or is deaf or mute, the Complaints Commission must provide them with the services of an interpreter.NoticeA person intending to call a witness during a hearing must, no later than 30 days before the day on which the hearing is to begin, provide notice to the Registrar if that witness will need the services of an interpreter.
Private Hearings
OrdersIf the Complaints Commission orders that a hearing or any part of a hearing be held in private under section 250.42 of the Act, it may make any of the following orders:that certain persons be excluded;that certain persons be admitted on terms and conditions;that restrictions be placed on the disclosure and publication of evidence, including the use of non-identifying initials and the redaction of transcripts and exhibits;that restrictions be placed on public access to the Complaints Commission’s record, or that the Registrar maintain separate public and confidential records; andthat any other order that the Complaints Commission considers appropriate be made.
Private hearingsIf a person believes that any information described in paragraph 250.42(a), (b) or (c) of the Act is likely to be disclosed, they may request that the Complaints Commission hold all or part of the hearing in private.Burden of proofThe person making the request bears the burden of establishing why it is necessary for the hearing to be private.
Private consideration of requestThe Complaints Commission may convene in private to consider a request under section 64.Public decisionAfter convening in private to consider the request under section 64, the Complaints Commission must make its decision public.Contents of public decisionThe public decision must set out the following in writing:the criteria and principles applied in determining whether the information will be heard in private;the general nature, to the extent possible, of any evidence that will be heard in private; andthe reasons for accepting or denying the request.Confidential reasonsThe Complaints Commission may, in addition to its reasons referred to in paragraph (3)(c), issue confidential reasons, not available to the public, referring to specific evidence that it decided should be heard in private. If the Complaints Commission decides to issue confidential reasons, it must give reasons for its decision.
Non-disclosure of informationSubject to subsection (2), if a hearing or a part of a hearing is ordered to be held in private, no person may disclose, except to their representative or to another person who participates in or attends the hearing or the part of that hearing that was ordered to be held in private,any information disclosed in the hearing or the part of the hearing that is held in private; orthe confidential reasons, if any, issued by the Complaints Commission.Order for disclosureOn the motion of a person, the Complaints Commission may make an order permitting a person to disclose any information referred to in subsection (1).
Examination of Witnesses
TestimonyAll testimony before the Complaints Commission must be given under oath or solemn affirmation.
Evidence by affidavitThe evidence of a witness or proof of a particular fact or document may be given by affidavit, unless the Complaints Commission orders otherwise, and the deponent must be made available for cross-examination, if required.
Exclusion of witnessesThe Complaints Commission may, on request or on its own motion, order that witnesses be excluded from the hearing until they are called to testify.No communication by excluded witnessesNo witness who has been excluded from a hearing may communicate with any person about any evidence or testimony that is given during the course of a hearing until after the witness has testified, except with the leave and on the direction of the Complaints Commission.
Witness counselWitnesses may be represented by counsel.
Sequence of examinationThe sequence of examination in the ordinary course of a hearing is as follows:Commission counsel leads the examination in chief of the witnesses, and may ask both leading and non-leading questions;the parties may then cross-examine the witness in the order determined by the parties or, failing their agreement, by the Complaints Commission;subject to the leave of the Commission, intervenors and counsel may cross-examine a witness; andCommission counsel may re-examine the witness.
Application to lead examination in chiefA party, an intervenor, a witness or their counsel may apply to the Complaints Commission for leave to lead the examination in chief of a particular witness.Applicable rulesIf leave to lead the examination in chief is granted, the examination must be governed by the normal rules for the examination of one’s own witness in court proceedings, unless the Complaints Commission directs otherwise.
LimitsThe Complaints Commission may reasonably limit further examination or cross-examination of a witness if it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.
Commission questionsThe Complaints Commission may question any witness who gives oral evidence.
Communication with witnessesUnless authorized by the Complaints Commission, no party, intervenor, witness or their counsel, may speak to a witness, after that witness has been sworn, affirmed or otherwise accepted as a witness, about the evidence that they have given or are expected to give until the evidence of that witness is complete.
Intention to call witnessA party must provide the Complaints Commission with 15 days’ notice of its intention to call a witness.Refusal to call witnessAn intervenor or counsel for a witness may by motion, on 15 days’ notice, apply to the Complaints Commission for leave to call a witness whom the intervenor or counsel for a witness believes has evidence relevant to an issue, if Commission counsel has refused to call the witness.
Use of Documents During Hearing
StatementIf a party, intervenor or counsel for a witness calls a witness, they must provide Commission counsel, the parties and any intervenors who have an interest in the subject matter of the proposed evidence with the statement of that witness, at least five days before the witness is to testify.Written summaryIn the absence of such a statement, the party, intervenor or counsel for the witness must, subject to any confidentiality orders, prepare and provide Commission counsel with a written summary of that witness’ anticipated evidence and a list of documents that may be put to the witness at least five days before the witness is to testify.
Cross-examination — previous statementIf a person uses a document for the purpose of contradicting a witness on cross-examination on previous statements, section 10 of the Canada Evidence Act applies, with any necessary modifications.List and copy of documentsCounsel or the person conducting the cross-examination must provide to the parties, Commission counsel, the witnesses and any intervenors who have an interest in the subject matter of the proposed evidence, not later than five days before the testimony of that witness begins, a list of documents that may be put to the witness and copies of those documents.Failure to produce documentIf counsel or the person conducting the cross-examination fails to produce a document in accordance with subsection (2), the Complaints Commission may order that the document be produced to all parties, adjourn the proceedings if necessary or make any other suitable order to ensure fairness in the proceedings.Use of document for other purposesIf counsel or the person conducting the cross-examination wishes to use a document in cross-examination for any purpose other than to contradict the witness, that document must be produced in accordance with section 51.
Status of summary of anticipated evidenceA summary of anticipated evidence is not testimony and may not be referred to in the examination of the witness.
Witness Panels
Witness panelsThe Complaints Commission may require that some or all of the witnesses testify as a panel at a time and in a manner determined by the Complaints Commission.
Expert Witnesses
Expert reportIf Commission counsel, a party or an intervenor intends to introduce the report evidence of an expert witness at the hearing, they must serve it on all parties and intervenors at least 60 days before the expert is scheduled to testify.Report in responseCommission counsel, a party or an intervenor may serve the report of an expert in response on all parties and intervenors, provided that it is served at least 30 days before the responding expert is scheduled to testify.Report in replyCommission counsel, the party or the intervenor calling the expert may, at least 15 days before the expert is scheduled to testify, serve an expert report in reply on all parties and intervenors.Content of reportA report referred to in any of subsections (1) to (3) must include the following:a full statement of the evidence of the expert;the expert’s qualifications and areas in respect of which it is proposed that he or she be qualified as an expert;the sources and documents relied on in the report; andthe form set out in Schedule 3, duly completed.
Expert report provided to the RegistrarUnless otherwise ordered under section 36, a report referred to in section 81 must be filed at least 10 days before the expert is scheduled to testify.Reading by the CommissionThe Complaints Commission may read the expert report in advance of the testimony of the expert.RecordThe report of an expert does not form part of the record unless it is received in evidence at the hearing.
Commission-appointed expertsThe Complaints Commission may, at any time, by order, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding.Content of orderThe order must contain the following information:the name of the expert being appointed, and their title and qualifications;the instructions given to the expert with respect to the preparation of the report;the questions to be posed to the expert;the date on which the report of the expert is to be provided to the Complaints Commission; andthe nature and extent of the expert’s participation in the proceeding.Service of reportThe Registrar must serve a copy of the report on every party and any intervenor.RecordThe report does not form part of the record until it is received in evidence at the hearing.ResponseAny party or intervenor may file a written response to the expert’s report and may examine the expert. The order and nature of such examinations are to be determined by the Complaints Commission.Further or supplementary reportThe Complaints Commission may order the expert to make a further or supplementary report and subsections (3) to (5) apply to that report.
Adjournment
Power of CommissionThe Complaints Commission may, of its own motion or on the request of Commission counsel, a party or an intervenor, adjourn a hearing if it is necessary to permit a fair hearing to be held.Factors for considerationIn considering whether to grant an adjournment, the Complaints Commission may consider the following factors:any prejudice that might be caused to a person;the timing of the request or motion for the adjournment;the number of prior requests for an adjournment;the number of adjournments already granted;prior directions or orders with respect to the scheduling of future hearings;the public interest;the costs of an adjournment;the availability of witnesses;the efforts made to find alternatives to the adjournment request;the principle of a fair hearing; andany other relevant factor.
Maintenance of Order at Hearings
Orders or directionsThe Complaints Commission may make orders or give directions that it considers necessary for the maintenance of order at the hearing.Attendance at a hearingFor the purposes of subsection (1), the Complaints Commission, by order, mayimpose restrictions on a person’s presence at a hearing; andexclude a person from further participation in or attendance at a hearing until the Complaints Commission orders otherwise.
Transitional Provision, Repeal and Coming into ForceTransitional Provision
ApplicationThese Rules apply only to proceedings commenced after these Rules come into effect.
Repeal
The Rules of Procedure for Hearings Before the Military Police Complaints Commission1 are repealed.SOR/2002-241
Coming into Force
RegistrationThese Rules come into force on the day on which they are registered.
(Section 54)Confidentiality UndertakingFILE NUMBER STYLE OF CAUSE I undertake to the Military Police Complaints Commission (Commission) that documents or information that are produced to me in connection with the Commission’s proceedings will not be used by me for any purpose other than for those proceedings. I undertake that I will not disclose any such documents or information to anyone other than the following persons provided that they have also given this written undertakingFOR COUNSELthe parties, intervenors or witnesses I represent in this proceeding;counsel and staff assisting me in the proceeding; andany experts retained in the proceeding.FOR NON-COUNSELmy counsel;any persons retained to assist me in the proceeding; andany experts retained by me in the proceeding.I understand that this undertaking ceases to apply once any such document or information has been entered as a public exhibit in the hearing, or to the extent that the Commission may release me from the undertaking with respect to any document or information.I also understand that this undertaking applies only with respect to documents disclosed by the Commission and has no application with respect to documents or information that I already possess, or that I may obtain independently during the Commission’s proceedings, even if they are the same as some of the documents or information produced to me in connection with the Commission’s proceedings.I further understand that the documents and information which remain subject to this undertaking at the end of the proceeding must be destroyed andFOR COUNSEL, I undertake:to destroy those documents or information (and any copies that I may have made) and to provide a certificate of destruction to the Commission or to return those documents to the Commission for destruction; andto collect and destroy such documents or information (and any copies that I may have made) from anyone to whom I have disclosed any documents or information that were provided to me by the Commission in connection with the Commission’s proceedings, or to return those documents to the Commission.FOR NON-COUNSEL, I undertake:to provide such documents or information to my counsel and understand that my counsel will destroy them; andif I am not represented by counsel, to give to the Commission all documents and information provided to me by the Commission for the purposes of the proceeding (and any copies that I may have made).I undertake to safeguard the documents or information provided to me, including notes taken from or copies made of those documents or information, at all times.If documents or information subject to this undertaking are lost or stolen or that here has been unauthorized access, I undertake to advise the Commission immediately. I agree to take whatever steps are necessary to mitigate the risks of improper disclosure of the documents or information.(signature of person giving undertaking)(signature of witness)(print name in block letters)(print name in block letters)(date)(date)
(Section 61)Summons to WitnessFILE NUMBER STYLE OF CAUSE NAME OF WITNESS ADDRESS You are required to attend before the Military Police Complaints Commission at a hearing to be held at (address), on (day and date), at (time), and so on from day to day until the hearing is concluded or the Commission otherwise orders, to give evidence under oath or solemn affirmation in respect of the hearing.You are to bring with you and produce at that time and place any relevant documents or other things under your control, including: (Specify the nature and date of each document or other material and give sufficient details in order to identify them).Date (signature)(print name in block letters)Member of the Military Police Complaints CommissionNOTEIf you fail to attend and give evidence at the hearing, or to produce the documents or things at the time and place specified, you are liable, under section 302 of the National Defence Act, to a fine of not more than $500 or to imprisonment for a term of not more than six months or to both.A person, other than an officer or non-commissioned member of the Canadian Forces or an officer or employee of the Department of National Defence, is entitled, under section 251.2 of the National Defence Act, at the discretion of the Military Police Complaints Commission, to receive payment of the same fees and allowances for attendance at the hearing as are paid for the attendance of a witness summoned to attend before the Federal Court.(Paragraph 81(4)(d))Undertaking of Expert WitnessFILE NUMBER STYLE OF CAUSE My name is (name in block letters of expert witness). I live in (city) in the (province/state) of , (country).I have been engaged by or on behalf of (name of person retaining expert) to provide evidence as an expert in relation to the above-noted proceeding.I acknowledge that it is my duty to provide evidence in relation to that hearing as follows:to provide my opinion on evidence that is fair, objective and non-partisan;to provide my opinion on evidence that is related only to matters that are within my area of expertise; andto provide any additional assistance that the Complaints Commission may reasonably require to determine an issue.I acknowledge that the duty referred to above prevails over any obligation that I may owe to any party by whom or on whose behalf I am engaged.Date (signature of expert)(name of expert in block letters)