Date: 20231024

 

Docket: CMAC-631

Citation: 2023 CMAC 10

[ENGLISH TRANSLATION]

Present: BELL C.J.

BETWEEN:

MASTER CORPORAL CLAUDE HOUDE

Moving Party\Appellant

and

HIS MAJESTY THE KING

Respondent

Heard at Ottawa, Ontario, on September 11, 2023.

Order delivered at Ottawa, Ontario, on October 24, 2023.

REASONS FOR ORDER BY:

CHIEF JUSTICE BELL

 

Date: 20231024

 

Docket: CMAC-631

Citation: 2023 CMAC 10

Present: BELL C.J.

BETWEEN:

MASTER CORPORAL CLAUDE HOUDE

Moving Party\Appellant

and

HIS MAJESTY THE KING

Respondent

REASONS FOR ORDER

CHIEF JUSTICE BELL

[1] On June 3, 2022, the General Court Martial found Master Corporal Claude Houde (the appellant) guilty on two counts of sexual assault punishable under section 130 of the National Defence Act, RSC 1985, c N-5, contrary to paragraph 272(1)(c) of the Criminal Code, RSC 1985, c C-46. One of these offences occurred on December 5, 2015, and the other, between December 2015 and March, 2017.

[2] On January 27, 2023, a military judge sentenced the appellant to two years imprisonment, less a day, and imposed other measures. On February 28, 2023, a military judge released the appellant on condition that he (a) abstain from communicating, directly or indirectly, with M.L.P., her spouse J.T. and their children; (b) abstain from disturbing M.L.P., her spouse J.T. and their children; and (c) abstain from going to the residences or workplaces of M.L.P and her spouse J.T.

[3] On February 28, 2023, the appellant filed a notice of appeal to this Court. On March 29, 2023, the Court Martial Administrator forwarded a copy of the appeal book to each of the parties. Pursuant to Rule 7 of the Rules of Appeal Practices and Procedures of the Court Martial Appeal Court of Canada, SOR/86-959 (“Rule 7”), the 30-day time limit granted to the appellant to file his memorandum of fact and law (“submission”) commenced. In this case, the appellant had until April 29, 2023, to file his submission, which he failed to do.

[4] On April 25, 2023, Defence Counsel Services awarded a contract to Sylvain Morissette, a civilian lawyer, to provide the appellant with legal services, pursuant to subparagraph 101.11(q) of the Queen’s Regulations and Orders for the Canadian Forces, SOR/99-1305. On April 26, 2023, the appellant appointed Sylvain Morissette as his counsel. That same day, Mr. Morissette filed a notice of motion for an initial extension of time until July 29, 2023, which is 90 days more than the 30 days prescribed by Rule 7. After considering the record, and taking into account that the respondent did not object to the motion, the Court granted this initial extension of time.

[5] On May 4, 2023, Mr. Morissette withdrew from the case, citing a conflict of interest. Then, on June 8, 2023, Defence Counsel Services authorized Mr. Boucher, another civilian lawyer, to represent the appellant. At that date, Mr. Boucher had 51 days to file the appellant’s submission. Mr. Boucher therefore had an additional 21 days beyond the 30 days prescribed by Rule 7, within which to file his submission.

[6] On July 17, 2023, 12 days before the end of the first extension (July 29, 2023), Mr. Boucher filed another motion, asking the Court to grant a second application for an extension of time to file the appellant’s submission. The appellant requested an additional four months, commencing July 29, 2023. Unlike the case in the initial extension, the respondent objects to the second motion for an extension of time.

[7] On September 11, 2023, at the hearing of this motion, Mr. Boucher asked the Court to reduce the time requested in the second application for an extension from four (4) months to 60 days, commencing on September 11, 2023.

I. The evidence

[8] On July 13, 2023, the appellant signed an affidavit attesting that, to the best of his knowledge, the facts set out in the notice of motion were accurate. His affidavit reads as follows:

[translation]

I, the undersigned, Claude Boude [sic], domiciled at 302 De la Terrasse-Bellevue Street, Saguenay (La Baie), QC, G7B 1T9, judicial district of Chicoutimi, do solemnly affirm the following:

1. I am the appellant in Court Martial Appeal Court of Canada file number CMAC 631.

2. I filed my notice of appeal with the Registry of the Court on or about February 28, 2023.

3. In March, I applied to Defence Counsel Services to have a lawyer appointed to represent me.

4. Sylvain Morissette appeared on my behalf.

5. The time for filing my memorandum of fact and law was initially extended to July 29, 2023.

6. Sylvain Morissette had to withdraw from the case.

7. Mr. Morissette was replaced by Francis Boucher when the latter received confirmation of his mandate on June 8, 2023.

8. I have read the motion for an order to extend the time to file my memorandum, and all the facts alleged in it are true and accurate to the best of my knowledge.

Solemnly affirmed at

Jonquière on July 13, 2023

Claude Houde.

[9] The notice of motion reads as follows:

[translation]

AND FURTHER TAKE NOTICE THAT the order should be made because:

The moving party’s application to be represented by a DCS lawyer was submitted to the Appeal Committee on March 23, 2023.

The appeal book was filed with the Registry on March 29, 2023.

Sylvain Morissette appeared for the moving party but had to withdraw from the case.

The time to file the memorandum of fact and law initially ended on April 28, 2023, but was extended for the first time to July 29, 2023.

Undersigned counsel replacing Sylvain Morissette did not receive confirmation of his mandate until June 8, 2023.

The appeal book includes 11 volumes, and since undersigned counsel did not represent the moving party before the General Court Martial, undersigned counsel had to analyze the file before filing his memorandum.

Undersigned counsel will be absent for personal reasons (parental leave) for the entire month of August.

AND FURTHER TAKE NOTICE THAT in support of this application, the appellant will rely on:

The affidavit of moving party Claude Houde

A copy of the email confirming undersigned counsel’s mandate in this appeal

Together with such further material as counsel for the party may advise and the Court may permit.

Signed at Roberval on June 27, 2023

Francis Boucher

II. Analysis

[10] In R. v. Roberge, 2005 SCC 48 (CanLII), [2005] SCR 469 (Roberge), the Supreme Court of Canada set out factors to be considered in an application for an extension of time to commence an appeal:

(a) whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;

(b) whether counsel moved diligently;

(c) whether a proper explanation for the delay has been offered;

(d) whether the extent of the delay is reasonable;

(e) whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and

(f) whether the applicant has explained the merits of the application for leave to appeal.

[11] In R. v. Stevens, 2008 CMAC 5 (CanLII), 7 CMAC 244, and Kadder c. R., 2018 QCCA 936 (CanLII), 2018 QCCA 936, although the factors are expressed differently than as set out in Roberge, those Courts reiterate the same principle established by the Supreme Court of Canada. In all the circumstances, and considering the factors referred to above, the Court must ensure that justice is done when assessing motions for an extension of time (Roberge, at para. 6).

[12] The Court has considered the appellant’s affidavit, as well as the notice of motion prepared by Mr. Boucher, given that the appellant refers to the notice in his affidavit, in making the following findings:

(a) The initial extension of time was for 90 days, three times longer than the time provided by Rule 7.

(b) The appellant does not state in his affidavit why he was unable to file his submission before July 29, 2023 (end date of the initial extension).

(c) The appellant has not explained the steps he took between May 4 (date of Mr. Morrissette’s withdrawal) and June 8 (date Mr. Boucher was authorized to represent the appellant);

(d) Counsel for the appellant, Mr. Boucher, did not set out facts explaining why he could not work on the appeal or move it forward between June 8 and July 29, between July 29 and July 31 and between September 1 and the date of the hearing (September 11, 2023). The Court is aware that Mr. Boucher was on parental leave during the month of August.

(e) In his affidavit, the appellant does not address the merits of his appeal. There is no motion memorandum demonstrating the merits of the appeal, be it through the use of the transcript or otherwise.

[13] It is crucial that a motion, such as the present one, lay a factual foundation which permits the judge to render a discretionary decision fairly. It is the responsibility of the appellant and his counsel to lay that foundation.

[14] In R. v. Smart, 2013 ABCA 442 (CanLII), 566 AR 241 (Smart), Justice Martin applied the factors set out in R. v. Roberge. In that case, the Court denied the application for an extension of time. The moving party was unable to explain a 26-day delay. The Court concluded that it could be presumed from the lack of explanation of what occurred, or did not occur, during those 26 days, that there was a complete lack of diligence:

… counsel was unable to offer any information to explain what, if anything, happened in the intervening 26 days. I infer from that failure to account that nothing happened; in other words, that there was a complete lack of diligence over that three and a half week period.

In my opinion, absent unusual circumstances, that is fatal. [R. v. Smart], paras. 11–12.

Considering that Mr. Boucher has provided no explanation, I find that there was a complete lack of diligence in this case.

[15] Turning to the merits of the appeal, I note that the appellant did not present any evidence or a memorandum setting out the merits of the appeal. It is not the Court’s role to “guess” or “seek out” the merits of a case (Roberge; R. v. R.E.M., 2011 NSCA 8 (CanLII), 299 NSR (2d) 258, para. 39; R. v. D.P.B., 2002 NSCA 55 (CanLII), 2002 NSCA 55; R. v. Pettigrew, 1996 NSCA 17 (CanLII), 149 NSR (2d) 303).

[16] I now turn to the issue of prejudice. The Court must consider the prejudice to the parties which would result from its decision (Roberge, R. c. Hudon, 2016 QCC 2085 (CanLII), 2016 QCC 2085, para. 17; R. v. Canto, 2015 ABCA 306 (CanLII), 329 CCC (3d) 169, para. 13; R. v. Truong, 2007 ABCA 127, 404 AR 277, para. 6). If the motion is dismissed, the appellant will be prejudiced in that he will no doubt lose the opportunity to pursue his appeal. On the other hand, human memories fade over time. This reality is prejudicial to both the prosecution and defence witnesses. The delays incurred have negative consequences for the administration of justice.

[17] Before concluding these reasons, I will respond briefly to Mr. Boucher’s argument that he requires an extension because he was not the lawyer who pleaded the case at trial. This argument is not persuasive. It is often the case, that counsel who plead a case at trial, are not the same counsel who represents the client on appeal. Moreover, before accepting a retainer, counsel is responsible for ensuring that his or her workload will permit the completion of the mandate.

[18] Given the lack of diligence on the part of the appellant and his counsel, the lack of evidence regarding the merits of the appeal, the length of the extension of time requested, and the prejudice that another extension would cause to the prosecution, I dismiss the motion.

“B. Richard Bell”

 

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
DATE OF HEARING:		September 11, 2023
REASONS FOR ORDER BY:		CHIEF JUSTICE BELL
DATED:		October 24, 2023

APPEARANCES:

Me Francis Boucher	For The MOVING PARTY\Appellant
Lieutenant-Colonel Karl Lacharité	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Francis Boucher Avocat Inc. Roberville, Quebec	For The MOVING PARTY\Appellant
Canadian Military Prosecution Service Ottawa (Ontario)	FOR THE RESPONDENT