Present: BELL C.J.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant/Responding Party
and
CORPORAL EULER
Respondent/Moving Party
Motion determined on the basis of written submissions filed by the Moving Party on the 20th day of October, 2021 and by the Responding Party on the 5th day of November, 2021.
Order delivered at Ottawa, Ontario, on November 17, 2021.
REASONS FOR ORDER BY:
CHIEF JUSTICE BELL
Present: BELL C.J.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant/Responding Party
and
CORPORAL EULER
Respondent/Moving Party
REASONS FOR ORDER
CHIEF JUSTICE BELL
1By way of Notice of Motion brought pursuant to Rule 8(1) of the Court Martial Appeal Court Rules, SOR86/-959 (Rules), filed on October 20, 2021, Corporal P.J.M. Euler, the Moving Party, requests this Court quash the appeal on the basis that the Appellant has not shown a substantial ground of appeal in its Memorandum of Fact and Law. For the following reasons I dismiss the motion.
2The power to quash an appeal should be exercised sparingly: Schmidt v. Toronto Dominion Bank, (1995) 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (ONCA) at para. 6, 82 OAC 233; Christo v. Woon, 2017 ONSC 5127 at para. 22, 282 A.C.W.S. (3d) 617.
3In their submissions, the parties present differing interpretations of the Military Judge’s reasons. The Appellant contends that the Military Judge required corroboration of the complainant’s testimony. The Moving Party, Corporal P.J.M. Euler contends that the Military Judge did not require corroboration. Such differing interpretations are more appropriately dealt with by way of a hearing on the merits, rather than by way of a motion to quash.
4For the above reasons :
IT IS ORDERED THAT the motion to quash the appeal is dismissed.
“B. Richard Bell”
Chief Justice
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-618
STYLE OF CAUSE:
HER MAJESTY THE QUEEN v. CORPORAL EULER
MOTION DETERMINED ON THE BASIS OF WRITTEN SUBMISSIONS, WITHOUT APPEARANCE OF THE PARTIES.
REASONS FOR ORDER BY:
CHIEF JUSTICE BELL
DATED:
november 17, 2021
IN WRITING:
Maj Patrice Germain
AppELLANT/RESPONDING PARTY
LCol D. Bernsten
Respondent/MOVING PARTY
SOLICITORS OF RECORD:
Canadian Military Prosecution Services Ottawa, Ontario
AppELLANT/RESPONDING PARTY
Defence Counsel Services Gatineau, Quebec
Respondent/MOVING PARTY