[ENGLISH TRANSLATION]
CORAM:
MAINVILLE J.A RENNIE J.A. PARDU D.J.
BETWEEN:
MASTER CORPORAL CLAUDE HOUDE
Appellant
and
HIS MAJESTY THE KING
Respondent
Hearing held by videoconference managed by the Registry at Ottawa, Ontario
on January 29, 2024.
Reasons for order delivered at Ottawa, Ontario, on January 30, 2024.
REASONS FOR ORDER:
THE COURT
CORAM:
MAINVILLE J.A RENNIE J.A. PARDU D.J.A.
BETWEEN:
MASTER CORPORAL CLAUDE HOUDE
Appellant
and
HIS MAJESTY THE KING
Respondent
REASONS FOR ORDER
THE COURT
1The General Court Martial found the Appellant guilty of two counts of sexual assault. The Appellant appealed the verdict to the Court. On May 17, 2023, the Chief Justice extended the time for filing the Appellant’s memorandum of fact and law to July 29, 2023. On July 17, 2023, after the Appellant’s counsel withdrew on grounds of conflict of interest, the Appellant requested a second extension of time, which the Chief Justice denied on October 24, 2023, because it was not supported by sufficient evidence: R v Houde, 2023 CMAC 10.
2The Court is now seized of two applications. The first is brought by the Canadian Military Prosecution Service, which is asking the Court to declare the appeal to have been dismissed pursuant to Rule 28(1)(d) and (f) of the Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada, SOR/86-959, for failure by the Appellant to submit his memorandum of fact and law in accordance with the orders of the Chief Justice dated May 17, 2023, and October 24, 2023. The second is brought by the Appellant, who is asking the Court to restart the appeal following the order of the Chief Justice dated October 24, 2023, which contains an implied request that the appeal continue.
3The Court is of the opinion that the appeal should not be declared to have been dismissed.
4Although by his order dated October 24, 2023, the Chief Justice dismissed the motion for an extension of time for filing the Appellant’s memorandum of fact and law, he did not also dismiss the appeal for failure to comply with the Rules, which he could have done of his own initiative under Rule 28(1)(d).
5In addition, an order denying an extension of time to file an Appellant’s memorandum of fact and law because of insufficient evidence in support of the motion may be revoked or rescinded (which could, depending on the circumstances, include a variation of the order) if new compelling evidence is submitted to the Court, as Bell C.J. held in R v Duquette, 2020 CMAC 7. This is also the case where the Court has dismissed an appeal under Rule 28(1)(d) because an Appellant has failed to observe a requirement of the Rules, where the dismissal was not also based on the merits of the appeal: R v Stewart, .
6Given the new evidence in the record, which clearly sets out the reasons that prevented counsel for the Appellant from preparing the memorandum of fact and law within the prescribed time limit, and considering that the grounds of appeal relied upon are not prima facie frivolous, and considering that it is in the interests of justice that the Court be able to evaluate those grounds in light of a complete record, the Court is of the opinion that the appeal should continue: R v Stevens, 2008 CMAC 5.
FOR THESE REASONS, THE COURT:
A. DISMISSES the motion by the Canadian Military Prosecution Service for a declaration by the Court that the appeal has been dismissed for failure to observe a requirement of the Rules; and
B. GRANTS the Appellant leave to file his memorandum of fact and law no later than February 28, 2024.
“Robert Mainville”
J.A.
“Donald Rennie”
J.A.
“Gladys I. Pardu”
D.J.C.A
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-631
STYLE OF CAUSE:
MASTER CORPORAL CLAUDE HOUDE v. HIS MAJESTY THE KING
place of hearing:
Ottawa, Ontario, BY VIDEOCONFERENCE MANAGED BY THE REGISTRY
DATE OF HEARING:
JANUARY 29, 2024
reasons for order:
THE COURT
DATE of reasons:
JANUARY 30, 2024
APPEARANCES:
Francis Boucher
FOR the appellant
Lieutenant-Colonel Karl Lacharité
FOR the respondent
SOLICITORS OF RECORD:
Francis Boucher Avocat Inc. Roberval, Quebec
FOR the appellant
Canadian Military Prosecution Service Ottawa, Ontario
FOR the respondent