Court Martial Appeal Court

Date: 20211117

Docket: CMAC-618

Citation: 2021 CMAC 9

Present: BELL C.J.

Motion determined on the basis of written submissions filed by the Moving Party on the 20^th day of October, 2021 and by the Responding Party on the 5^th day of November, 2021.

Order delivered at Ottawa, Ontario, on November 17, 2021.

Date: 20211117

Docket: CMAC-618

Citation: 2021 CMAC 9

Present: BELL C.J.

REASONS FOR ORDER

CHIEF JUSTICE BELL

[1] By 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.

[2] The power to quash an appeal should be exercised sparingly: Schmidt v. Toronto Dominion Bank, (1995) 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.

[3] In 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.

[4] For the above reasons :

IT IS ORDERED THAT the motion to quash the appeal is dismissed.

“B. Richard Bell”

COURT MARTIAL APPEAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

IN WRITING:

SOLICITORS OF RECORD: