Francesca Donna Ferguson

The applicant, Master Corporal Houde, was convicted of sexual assault and sentenced to 42 months' imprisonment following a Standing Court Martial.

After his conviction was affirmed on appeal, he sought a stay of execution of his sentence pending an application for leave to appeal to the Supreme Court of Canada.

The Court found it had jurisdiction to hear the motion under section 65.1(2) of the Supreme Court Act even though the leave application had not yet been filed.

Applying the RJR-Macdonald test, the Court found there was a serious issue and potential irreparable harm, but concluded the balance of convenience favoured the respondent.

Given the serious nature of the offences, the factual findings regarding the respect for the applicant's language rights at trial, and the need for public confidence in the timely enforcement of judgments, the motion for a stay was dismissed.

The appellant, a Master Corporal, appealed his sexual assault convictions and 42-month sentence imposed by a Standing Court Martial.

He raised several grounds: breach of language rights during a bilingual trial, unreasonable delay under Jordan following an adjournment caused by his inappropriate comment to the prosecutor, errors in finding lack of consent, and errors in applying the private records regime to exclude text messages he claimed showed a motive to fabricate.

The Court Martial Appeal Court dismissed the appeal, finding that the appellant's language rights were met through simultaneous interpretation, the trial delay was properly attributed to the defence, the judge correctly assessed consent, and the judge appropriately excluded text messages that relied on stereotypical reasoning to suggest a motive to fabricate.

The respondent pleaded guilty before a court martial to dangerous driving under the Criminal Code, charged as a military offence.

At sentencing, the prosecution and defence jointly recommended a driving prohibition under the Criminal Code.

The military judge held he lacked jurisdiction to impose a driving prohibition.

The prosecution appealed.

The Court Martial Appeal Court dismissed the appeal, holding that the National Defence Act establishes a distinct sentencing regime for military offences, and courts martial do not possess jurisdiction to impose discretionary penalties like driving prohibitions that are set out only in the Criminal Code.

The appellant, a civilian dependant of a Canadian Armed Forces member stationed in Belgium, was convicted by a Standing Court Martial of operating a conveyance while impaired.

He appealed, arguing that trying him in the military justice system rather than the civilian system was arbitrary and infringed section 7 of the Charter.

The Court Martial Appeal Court dismissed the appeal, holding that the statutory provisions explicitly apply Canadian law to his conduct abroad.

The Court further held that the decision to prosecute falls squarely within prosecutorial discretion, which can only be interfered with in cases of abuse of process, none of which was established here.

The appellant brought a motion for leave to file a reply memorandum, which the respondent opposed.

Under Rule 10(2) of the Court Martial Appeal Court Rules, leave is required because there was no cross-appeal.

The Chief Justice granted the motion, noting that the appellant could not have reasonably anticipated some of the respondent's positions, the respondent would suffer no prejudice (and would gain advance notice of arguments), and the reply would assist the Court.

The appellant appealed two decisions of the Standing Court Martial that dismissed his applications for a stay of proceedings based on an alleged violation of his right to be tried within a reasonable time under s. 11(b) of the Charter in respect of a sexual assault charge.

The Court Martial Appeal Court found no palpable and overriding error in the military judge's calculation and characterization of the delays under the Jordan framework.

The appeal was dismissed.

The Appellant applied to file a Memorandum of Fact and Law exceeding the 30-page limit by 15 pages in an appeal before the Court Martial Appeal Court.

The Appellant cited the voluminous record, including 29 appeal books and 13 voir dires, as justification.

The Court dismissed the application, holding that the sheer volume of material is insufficient to justify an extension.

The Appellant failed to provide a draft factum or sufficient details about the grounds of appeal to demonstrate why the arguments could not be presented concisely within the standard limits.

The appellant, convicted of sexual assault at a court martial, sought an extension of time to file his Memorandum of Fact and Law.

His new appellate counsel required additional time to review the 29-volume appeal book from the complex trial.

The Court applied the Davies criteria and found that it was in the interests of justice to grant an extension, given the volume of material and the lack of specific prejudice to the Crown.

An extension was granted to September 13, 2024.

The appellant appealed his conviction by a Standing Court Martial for sexual assault, arguing the military judge erred in applying eyewitness identification law and made palpable and overriding errors of fact regarding the complainant's identification of him.

The offence occurred aboard a deployed Navy ship where the complainant routinely served meals to crew members, including the appellant.

The Court Martial Appeal Court held the military judge correctly instructed herself on the frailties of eyewitness and recognition evidence, noting the potential tainting effect of a single photo shown by a colleague, and made no palpable or overriding errors in concluding the complainant reliably recognized the appellant.

The appeal was dismissed.

Nine members of the Canadian Armed Forces charged with service offences under the Code of Service Discipline challenged the constitutional validity of the statutory requirement that military judges presiding over courts martial must hold officer rank, alleging a breach of the right to an independent and impartial tribunal under s. 11(d) of the Charter.

The majority held that the military status of military judges, as presently configured under the National Defence Act, meets the three essential conditions of judicial independence — security of tenure, financial security, and administrative independence — and that a reasonable and informed person would not apprehend bias or insufficient independence.

The Court declined to depart from its earlier ruling in R. v. Généreux and upheld the constitutionality of ss. 165.21 and 165.24(2) of the NDA.

Karakatsanis J. dissented, concluding that the disciplinary accountability of military judges to the executive chain of command undermines judicial independence in a manner that cannot be saved under s. 1.

The Crown appealed the acquittal of a military physician on four fraud-related charges arising from the writing of illicit prescriptions.

At trial, the military judge granted a directed verdict (no prima facie case) on the basis that the Crown failed to prove actual deprivation.

The Court Martial Appeal Court allowed the appeal and ordered a new trial, finding the military judge misapplied the test for fraud and the no prima facie case standard.

The Court held that only a risk of deprivation is required, and there was some evidence upon which a trier of fact could reasonably convict.

The Crown appealed an acquittal of sexual assault entered by a military judge, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles.

The Court Martial Appeal Court majority dismissed the Crown's appeal and upheld the acquittal.

The Supreme Court of Canada, by majority, dismissed the appeal substantially for the reasons of the Court Martial Appeal Court majority, finding that the military judge's assessment of the evidence was thorough and cumulative, and that no wrong legal principles were applied.

Although some improper speculation was noted, it did not undermine the military judge's fundamental findings.

O'Bonsawin J. dissented and would have allowed the appeal.

The Crown appealed the acquittal of the respondent on two counts of indecent acts.

The Crown argued that the military judge erred by admitting evidence that invited impermissible reasoning based on myths and stereotypes regarding the complainant's post-offence conduct, specifically her failure to report immediately and her continued friendly email correspondence with the respondent.

The Court Martial Appeal Court dismissed the appeal.

The Court found that the cross-examination on the emails was conducted for a proper purpose to challenge the complainant's statements and corroborate the defence theory.

While defence counsel's closing address improperly invited the panel to engage in myth-based reasoning, the Court concluded that this single error did not have a material bearing on the verdict, given the military judge's instructions to the panel and the other bases upon which the panel could have found a reasonable doubt regarding the complainant's credibility.

The appellant, a retired corporal, appealed his conviction by a Military Judge for conduct to the prejudice of good order and discipline under s. 129 of the National Defence Act.

The sole ground of appeal was a constitutional challenge asserting that military judges lack independence and impartiality because they are also officers in the Canadian Armed Forces.

The Court Martial Appeal Court of Canada dismissed the appeal, relying on its recent jurisprudence to hold that the status of military judges as officers does not render them partial or lacking in independence.

The applicant, a Sergeant convicted of sexual assault and sentenced to nine months of imprisonment and a reduction in rank, sought a stay of the execution of his sentence pending his application for leave to appeal to the Supreme Court of Canada.

The Crown consented to the stay subject to conditions.

The Court Martial Appeal Court of Canada applied the RJR-MacDonald and Oland tests, finding that the appeal raised a serious issue regarding the independence and impartiality of military judges, that the applicant would suffer irreparable harm, and that the balance of convenience favoured granting the stay.

The Court granted the stay of execution of sentence subject to conditions.

The appellant, a Sergeant in the Canadian Armed Forces, appealed his conviction for sexual assault by a Military Judge.

The appellant raised four grounds of appeal: refusal to grant a meaningful adjournment following late disclosure, refusal to grant an adjournment prior to sentencing to investigate false memory syndrome, restricting cross-examination of the complainant regarding her financial situation and potential class action claim, and lack of judicial independence of the Military Judge.

The Court Martial Appeal Court dismissed the appeal, finding no error in the Military Judge's discretionary decisions regarding adjournments and cross-examination, and rejecting the judicial independence argument based on established jurisprudence.

The Crown appealed the acquittal of the respondent, who had been charged with sexual assault.

The Crown argued the military judge erred in concluding that the complainant, who was highly intoxicated, was capable of consenting to the sexual activity.

The majority of the Court Martial Appeal Court dismissed the appeal, finding no legal error in the military judge's assessment of the evidence and his conclusion that the Crown failed to prove lack of capacity or lack of consent beyond a reasonable doubt.

The dissenting judge would have allowed the appeal and ordered a new trial, finding the military judge failed to conduct a proper cumulative assessment of the evidence.

The Crown appealed a sentence imposed by a military judge on the respondent, who pleaded guilty to common assault against his girlfriend and an offence under the Code of Service Discipline for fighting with a corporal.

The military judge imposed a severe reprimand and a $3,000 fine, rejecting the Crown's request for a 90-day term of imprisonment.

The Court Martial Appeal Court dismissed the appeal, finding that the military judge properly considered the principles of sentencing, including denunciation and deterrence, and correctly applied both military and civilian case law.

The sentence was not demonstrably unfit and was free from any error in principle.

The Crown appealed a military judge's decision terminating court martial proceedings against the respondent for sexual assault.

The alleged offences occurred in 1998, prior to the coming into force of Bill C-25, which amended s. 70 of the National Defence Act to give military courts concurrent jurisdiction over sexual assaults committed in Canada.

The issue on appeal was whether the amendment applied retrospectively.

The Court Martial Appeal Court held that Parliament did not express a clear intent for the amendment to apply retrospectively.

Furthermore, the amendment affected substantive rights, including the right to a jury trial and the right not to be subjected to more severe punishment, as the military system only prosecutes sexual assault by indictment and does not offer conditional discharges.

Therefore, the presumption against retrospective application applied.

The appeal was dismissed, confirming that service tribunals lack jurisdiction to try sexual assaults alleged to have occurred in Canada prior to September 1, 1999.

The appellant, a military reservist, was convicted at a General Court Martial of stealing and conduct to the prejudice of good order and discipline after unauthorized ammunition was found in his barracks nightstand.

He appealed, arguing that his statements to military police should have been excluded due to Charter breaches, that evidence of the ammunition's discovery should have been excluded under section 24(2), and that the military judge erred by not giving a W.(D.) instruction regarding his exculpatory statements.

The Court Martial Appeal Court dismissed the appeal, finding the appellant was not detained during questioning, the initial discovery by non-state actors was admissible independent of the subsequent unlawful police seizure, and the jury instructions were adequate.