Present: RENNIE J.A.
BETWEEN:
MASTER CORPORAL C. HOUDE
Applicant
and
HIS MAJESTY THE KING
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on May 19, 2026.
REASONS FOR ORDER BY:
RENNIE J.A.
Present: RENNIE J.A.
BETWEEN:
MASTER CORPORAL C. HOUDE
Applicant
and
HIS MAJESTY THE KING
Respondent
REASONS FOR ORDER
RENNIE J.A.
1On 27 July 2023, the applicant was found guilty on two counts of sexual assault following a Standing Court Martial and was sentenced to a period of imprisonment of 42 months (R. v. Houde, 2023 CM 3011). Following his conviction, MCpl Houde was released on bail on consent pending his appeal from conviction to this Court.
2On 27 April 2026, this Court dismissed the appeal and affirmed the convictions. MCpl Houde then surrendered into the custody of military police as required by the terms of his release pending appeal (R. v. Houde, 2026 CMAC 4) [Houde]. He now seeks a stay of execution of the 42 month sentence pending the disposition of an application for leave to appeal to the Supreme Court of Canada pursuant to section 65.1 of the Supreme Court Act, R.S.C., 1985, c. S-26 [Supreme Court Act]. While MCpl Houde has yet to file his application for leave to appeal, in his supporting affidavit he has indicated his intention to do so forthwith.
3For the reasons that follow, the application is dismissed.
I. Jurisdiction
4The parties raise a threshold jurisdictional question.
5The respondent argues that the motion is premature since the applicant has yet to file an application for leave to appeal to the Supreme Court of Canada (SCC) and has not shown that a delay in determining the stay application would result in a miscarriage of justice.
6I agree with the respondent that the authority to grant a stay pending appeal to the SCC under subsection 65.1(1) of the Supreme Court Act is not available as the applicant has yet to file for leave to appeal. However, I do not agree with the respondent that this Court lacks jurisdiction to grant the requested stay. Subsection 65.1(2) of the Supreme Court Act authorizes this Court to grant a stay of execution in advance of the filing of a leave application.
7In the present circumstances, delay in determining the motion serves neither the interests of the applicant nor the administration of justice. Neither party has identified an issue, argument or perspective as to how determination of the question whether a stay of execution should be granted is enhanced by delay. Delays and uncertainty carry their own costs. Further, the substantive legal question that will form the basis of the leave to appeal application appears to be a reprise of the arguments already canvassed in this Court and is therefore fully fleshed out. It is difficult to see how insisting on the actual application for leave being filed would advance consideration of the merits of the stay application. Therefore, I conclude that the Court has jurisdiction to hear the motion under subsection 65.1(2).
II. The test for a stay of execution of a sentence
8The applicant submits that the test for staying the execution of a sentence pending appeal is set forth in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 (at para. 19) [Oland]: the appeal is not frivolous, the applicant will surrender himself into custody in accordance with the order, and detention is not necessary in the public interest.
9The test in Oland, however, relates to bail pending appeal pursuant to section 679(3) of the Criminal Code, R.S.C. 1985, c. C-46. Bail pending appeal and a stay of execution are distinct processes. While the requirements set out in Oland are relevant considerations, the test for a stay of execution is well established: see RJR-Macdonald Inc. v. Canada (Attorney General), , [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 [RJR-Macdonald Inc.]; R. v. Royes, 2016 CMAC 3, 8 CMAR 24; R. v. Stillman, 2019 CMAC 1, 8 CMAR 1; R. v. Thibault, 2022 CMAC 6.
10Therefore, the question to be decided is whether the applicant meets the requirements of the applicable test set out in RJR-Macdonald Inc. That is to say, is there a serious question to be tried, will irreparable harm result if the stay is not granted, and does the balance of convenience favour the granting of the stay.
III. Serious Question
11The main issue which the applicant intends to raise in his application for leave to appeal concerns language rights in the context of the military justice system. He intends to argue that the language rights, as guaranteed in federal courts by the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), are insufficient for accused persons facing penal consequences. He contends that this Court failed to consider the impact of an accused’s right to choose the language of trial in the Queen’s Regulations and Orders for the Canadian Forces nor did it address the heightened need for language right protections in criminal cases. The applicant also intends to argue that the Military Judge erred in allowing text messages exchanged with the complainant into evidence.
12I agree with the respondent that whether there is a serious question is a matter to be assessed, not from the point of view of the SCC, but from the perspective of this Court (Cabin Ridge Project Limited v. Alberta, 2025 ABCA 109 at para. 15). While the right to be tried in the official language of the accused’s choice is an important constitutional right, this alone does not mean that every question involving language rights raises to the level of a serious question for the purposes of the RJR Macdonald test. As this Court noted in Houde (at para. 37):
While the absence of objection cannot cure a breach of linguistic rights if one occurs, the conduct of the parties can be helpful contextual information in determining their intentions and expectations about how things should unfold.
13Put otherwise, whether the question is a serious one is neither abstract nor academic; it must be grounded in the facts of the particular case. Here, the applicant elected to be tried in French. After this election, and in response to a joint application by the parties, the military judge directed that the Standing Court Martial to be conducted bilingually. This allowed a key witness to be examined and cross-examined by counsel in English with simultaneous interpretation provided in French.
14After a careful review of the trial record, this Court found that the trial was conducted bilingually at the joint request of the parties. It also found that the trial was conducted in accordance with the parties’ understanding and expectations regarding the conduct of bilingual proceedings with simultaneous translation provided whenever English was used (Houde at paras. 32, 33, 36). It also found that the military judge was vigilant about ensuring the applicant’s language rights were fully respected. On the sole occasion that there was a deviation from the accused’s right to be tried in French, the Courts Martial judge immediately directed that a Notice of Motion be re-filed in French (Houde at para. 34).
15Aside from this one instance, defence counsel did not raise any concerns about language rights as the trial was progressed. Nor was any particular breach or prejudice argued before this Court. I also note that the questions proposed for the Supreme Court’s consideration do not bear on either the actus reus or mens rea of the offence. Nor does the question of language rights have any direct bearing on the fairness of the trial; to the contrary, the trial format was selected by the applicant, and no objection was taken at trial, with the one exception noted. Put otherwise, the question proposed on appeal is not tethered to the factual or procedural foundation in the case itself.
16Nor does the admissibility of the text messages have the character of a question of public or national importance. As the reasons of Charbonneau D.J.A. indicate, this is more a question of the application of settled law of the Supreme Court to the facts of the case.
17That said, the test to establish a serious issue is not onerous and is met if an appellant can establish the appeal is neither frivolous nor vexatious (RJR-MacDonald at pp. 337–338). While the question of language rights, on these facts, has the air of being raised from strategic reasons, I conclude that the low threshold has been crossed.
IV. Irreparable Harm
18The applicant contends that if not granted a stay of execution, he will be required to serve a significant portion of his sentence before the SCC renders a decision on his application for leave to appeal. Further, the applicant is awaiting the birth of his child in the next few weeks and asserts that his imprisonment would have a significant impact on him and his child. I note, however, that while this is argued by defence counsel, it is unsupported by the applicant’s affidavit. Again, however, I am prepared to take this into account.
19The respondent concedes if the applicant remains incarcerated throughout the potentially lengthy leave and appeal process, the applicant would have suffered irreparable harm should a new trial be ordered due to any breach of his language rights.
20I agree that if the applicant is incarcerated because of a trial that violated his protected language rights, this would constitute irreparable harm.
V. Balance of Convenience
21The balance of convenience requires the Court to determine which of the two parties will suffer the greater harm (Manitoba (A.G.) v. Metropolitan Stores Ltd., , [1987] 1 S.C.R. 110 at 129). Although this differs from the third element of the test under Oland, which considers whether detention is necessary in the public interest, an important component of assessing the balance of convenience is public confidence in the administration of the justice system: (R. v. Beaudry, 2016 CMAC 2, 8 CMAR 20, at para. 6; and R. v. Royes, 2016 CMAC 3, 8 CMAR 24 at para. 27; R. v. Remington, 2023 CMAC 5 at paras. 19–20.)
22A stay of execution of a sentence may affect public confidence in the administration of the justice system, and, in this regard, the public interest considerations considered in Oland are instructive.
23In Oland (at paras. 23–26), the Court identified two components to the public interest test: public safety and public confidence in the administration of justice. The former considers the protection and safety of the public if the applicant were released pending appeal.
24Consideration of public confidence in the administration of justice, in contrast, requires a weighing of the competing interests of enforceability and reviewability. Enforceability recognizes the need to respect the general rule that judgments are enforceable immediately. Reviewability, on the other hand, acknowledges that the justice system is not infallible and that persons who challenge the legality of their conviction should be entitled to a meaningful review process. It ensures fairness in the appeal process, as it mitigates the prospect of the applicant having served a sentence where the appeal is ultimately allowed (R. v. Sidhu, 2015 ABCA 308, 607 A.R. 395, at para. 6 citing R. v. McNaughton, 2010 ABCA 87 at para. 12).
25The respondent argues that the balance of convenience weighs in favour of the applicant’s continued incarceration during his leave application. It notes that the offences for which the applicant has been convicted are serious, that the underlying facts are not being challenged, that the applicant has benefitted from a long period of liberty since the crime, that the victim deserves some degree of closure, and that the Canadian Armed Forces and Canadian public’s expectation that judicial decisions will be respected and enforced in a timely fashion.
26I agree that there is no concern that the applicant is a flight risk, nor is there any reason to believe he would not surrender into custody if the application for leave to appeal is dismissed. The applicant has been at liberty since February 2024. During this time, he has not been convicted or charged with any other offence. He has stated in his affidavit that he will surrender into custody should the SCC dismiss his application for leave to appeal. I agree that the risk he poses to the public is low.
27There is a relationship between the serious issue and the balance of convenience. This is because the strength of the grounds of appeal plays a role in assessing the weight to be given to the reviewability interest (see Oland at para. 45; R. v. S.O., 2024 NSCA 73 at paras. 11, 31; R. v. Tim, 2020 ABCA 39 at para. 13). In this case, this relationship—between reviewability and the serious question—does not weigh in favour of a stay. This Court unanimously dismissed the applicant’s language rights arguments and the language rights argument posited by the applicant have a tenuous connection to the facts of the conduct of the trial.
28I am of the view that the balance of convenience favours dismissal of the applicant’s motion for a stay of execution. Public confidence is to be viewed through the eyes of a reasonable person. A reasonable person would consider that the facts regarding the sexual assaults are not being challenged. A reasonable person would also take into account the findings of this Court that the trial was conducted in a manner that respected the applicant’s language rights and that no particular prejudice was raised on appeal. Public confidence also includes consideration of the interests of the victim in having some degree of closure to this matter and the public and Canadian Forces’ need for confidence that Court orders are respected and enforced in a timely fashion.
29For the reasons above, I dismiss the motion for a stay of execution of the judgment rendered in R. v. Houde, 2026 CMAC 4.
“Donald J. Rennie”
J.A.
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-644
STYLE OF CAUSE:
MASTER CORPORAL C. HOUDE v. HIS MAJESTY THE KING
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY:
RENNIE J.A.
DATED:
May 19, 2026
WRITTEN REPRESENTATIONS BY:
Major Francesca Ferguson Lieutenant-Commander François Bélanger
For The Applicant
Lieutenant-Colonel Patrice Germain
For The Respondent
SOLICITORS OF RECORD:
Defence Counsel Services Ottawa, Ontario
For The Applicant
Canadian Military Prosecution Service Ottawa, Ontario
For The Respondent