R. v. Reid, 2022 CM 2003

COURT MARTIAL Citation: R. v. Reid, 2022 CM 2003 Date: 20220203 Docket: 202116 Standing Court Martial Lieutenant-Colonel Philip L. Debney Armoury Edmonton, Alberta, Canada Between: Her Majesty the Queen - and - Corporal G. Reid, Accused Before: Commander S.M. Sukstorf, M.J. REASONS FOR FINDING (Orally) The case [ 1 ] The allegations before the Court concern the alleged conduct of Corporal Reid, a reservist and combat engineer who was serving as a clerk with 41 Service Battalion in the summer of 2019 during the 2019 Full-Time Summer Employment (FTSE) program at 41 Service Battalion.

The FTSE program was a means by which a number of recruits were being provided full-time employment for the summer months. Many of those recruits had no military qualifications or experience. There were approximately thirteen recruits undergoing FTSE at 41 Service Battalion that summer. [ 2 ] Corporal Reid faces four different charges for the offences of disgraceful conduct, contrary to

section 93 of the National Defence Act ( NDA ); ill treatment of a subordinate, contrary to

section 95 of the NDA . The first two charges refer to the same incident and complainant. The third charge relates to a different recruit, who was incidentally the brother of the complainant in the first two charges and alleges that Corporal Reid improperly ordered the recruit to shower with him, contrary to

section 129 of the NDA . The fourth charge alleges that Corporal Reid made racist comments, contrary to

section 129 of the NDA .

[ 3 ] The evidence suggests that two of the complainants were brothers, being then-Privates O. Turemis, and U. Turemis. They are both from Turkey and were serving under the FTSE program as finance services administrators and were tasked to work with Corporal Reid in the orderly room for their summer employment. [ 4 ] The witnesses described that generally, they began their day with one hour of physical training (PT) which took place from 0800 hours until 0900 hours each day. They then had from 0900 hours until 1000 hours to shower and get to their work places.

Although there were convenient communal showers located in the armoury for the candidates, the recruits were not required to shower at the armoury. The Turemis brothers were not comfortable showering in the communal showers and every day after PT, they returned home to take their showers before returning back to the armoury for 1000 hours. [ 5 ] The relevant charges read as follows: “ FIRST CHARGE

Section 93 NDA BEHAVED IN A DISGRACEFUL MANNER Particulars: In that he, on or about 13 June 2019, at or near Debney Armoury, Edmonton, Alberta, ordered Private U Turemis into a shower, and without justification watched the Private shower. SECOND CHARGE

Section 95 NDA ILL-TREATED A PERSON WHO BY REASON OF RANK WAS SUBORDINATE TO HIM Particulars: In that he, on or about 13 June 2019, at or near Debney Armoury, Edmonton, Alberta, ordered Private U Turemis into a shower, and without justification watched the Private shower. THIRD CHARGE

Section 129 NDA CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, on or about 14 June 2019, at or near Debney Armoury, Edmonton, Alberta, inappropriately ordered Private O Turemis to shower with him. FOURTH CHARGE

Section 129 NDA CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, between 1 June and 31 July 2019, in the presence of subordinates stated that “Indigenous persons are weaker than the rest of the population. They are like the black people of America and need special treatment”, or words to that effect.” [ 6 ] In reaching the Court’s decision, I reviewed and summarized the facts emerging from the evidence and made findings on the credibility of the witnesses. I instructed myself on the applicable law and applied the law to the facts, conducting my analysis before I came to a determination on each of the charges.

Presumption of innocence [7] The presumption of innocence remains throughout the court martial until such time as the prosecution has, on the evidenceput before the Court, satisfied the Court beyond a reasonable doubt that the accused is guilty of the charges before it. [8] So, what does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” is anchored in ourhistory and traditions of justice. It is so entrenched in our criminal law that some think it needs no explanation, but its meaning bearsrepeating (see R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, paragraph 39): A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. [9] In essence, this means that even if I believe that Corporal Reid is probably guilty or likely guilty, that is not sufficient.

If theprosecution fails to satisfy me of his guilt beyond a reasonable doubt, I must give him the benefit of the doubt and acquit him. [10] On the other hand, it is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to doso. Such a standard of proof is impossibly high. Therefore, in order to find Corporal Reid guilty of the charges before the Court, the onusis on the prosecution to prove something less than an absolute certainty, but more than probable guilt for the charges set out in the chargesheet (see R. v.

Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, paragraph 242). The law

Section 93 of the NDA– disgraceful conduct [11]

Section 93 of the NDA states: Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a termnot exceeding five years or to less punishment. [12] In order to prove a charge of disgraceful conduct before the Court, the prosecution is required to prove a number of elementsof the offence. Based on the unrefuted evidence before the Court, the Court has no problem concluding that the identity, elements of timeand place have been met. The elements left to be proven beyond a reasonable doubt for the charge are as follows: (

a) the conduct alleged in the particulars of the charge; (

b) the alleged conduct constituted disgraceful conduct; and (

c) that the accused had the wrongful intent.

Section 95 of the NDA – Ill-treated a person who by reason of rank was subordinate to him [13] Charge 2 contains the exact same particulars as set out in charge 1 but it relates to a separate offence under the NDA.

[ 14 ]

Section 95 of the NDA provides: Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment. [ 15 ] Based on the evidence, in addition to identity, the date and place of the offence, the fact that by reason of rank, the alleged complainants were subordinate to the accused were all proven by the prosecution. The remaining elements that the prosecution had to prove beyond a reasonable doubt were: (

a) the particulars; with respect to the second charge, the prosecution is obliged to prove beyond a reasonable doubt that Corporal Reid “ordered Private U. Turemis into a shower, and without justification watched the Private shower”; (

b) ill-treatment; once the particularized acts are proven beyond a reasonable doubt, then an assessment must be made as to whether, in the context in which the incident occurred, the act amounted to ill-treatment. Context is important in making a determination of whether the alleged conduct constitutes ill-treatment. The determination of whether something amounts to ill-treatment is determined objectively by assessing the above

definitions with regard to all the circumstances. The word “ill-treatment” is not defined in the NDA ; however, on a strict reading of the section, there is no limitation imposed as to the nature or manner of ill-treatment envisaged. The words in the

section are “strike or otherwise ill-treat” and includes treating badly or maltreating a subordinate in a different manner than by striking. It is not limited to physical violence or physical harm or injuries. It could be psychological, emotional or any harm or injuries of that nature. With respect to what constitutes ill-treatment, my colleague Pelletier M.J. set out the following in R. v. Duhart, 2015 CM 4022 : [48] The test that has been developed over time by various courts martial appears to be based on dictionary

definitions, specifically as it relates to the expression "ill-treat", which translates as maltraiter in French. The relevant terms are defined as follows in the Concise Oxford English Dictionary , 11th edition and Le Nouveau Petit Robert. "ill-treat" verb: act cruelly towards. DERIVATIVES: ill-treatment, noun. "cruel" adjective: disregarding or taking pleasure in the pain or suffering of others. Causing pain or suffering. DERIVATIVES: cruelly, adverb. "maltraiter" 1. Traiter avec brutalité . 2. Traiter avec rigueur, inhumanité . 3. Traiter sévèrement en paroles (une personne à qui l'on parle, ou dont on parle). (

c) blameworthy state of mind; once the particulars are proven and it has been determined that the conduct rises to the level of ill-treatment, the Court must then assess whether the accused had the requisite mental intent.

Section 129 of the NDA – conduct to the prejudice of good order and discipline [ 16 ] The third and fourth charges before the Court allege that there is a violation of

section 129 of the NDA for conduct to the prejudice of good order and discipline. Based on the unrefuted evidence before the Court, the Court has no problem concluding that the elements of identity, time and place have been met. [ 17 ] In order to prove that the alleged conduct is prejudicial to good order and discipline, there are a number of paths to do so:

(

a) firstly, the prosecution could prove the accused violated an established policy or order that the accused had actual or deemed knowledge of; (

b) secondly, the prosecution can prove the offence was committed if there is actual or direct evidence of prejudice to good order and discipline based on objective criteria of prejudice or likelihood of prejudice; or (

c) thirdly, absent evidence of actual prejudice, the prosecution can prove prejudice by inference. As part of an inferential reasoning process, a military judge must, based on his or her experience and general service knowledge, ask whether the proven conduct in this case can be considered conduct to the prejudice of good order and discipline. The military judge, using his or her knowledge and experience, must ask whether, on the totality of the evidence, in the circumstances of the case, prejudice to good order and discipline could be inferred from the facts as proven.

This reasoning process would take into account all the contextual circumstances of the case. Analysis [ 18 ] Having instructed myself on the presumption of innocence, reasonable doubt, the onus on the prosecution to prove their case, the required standard of proof and the essential elements of the offences, I now turn to address the legal principles. Credibility of the witnesses [ 19 ] Given that the event in question took place about two and a half years ago, it is not unusual that the evidence presented before the Court is contradictory.

This is a perfect example of why cases must be tried within a reasonable period of time. In this case, the witnesses have different recollections of the events that occurred and the Court had to determine what evidence it found most credible and reliable. [ 20 ] A court may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings. [ 21 ] Many factors influence the Court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’s opportunity to observe events, as well as a witness’s reasons to remember.

Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking or relatively unimportant and, therefore, understandably more difficult to recollect? There are other factors that come into play as well. For example, does a witness have an interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence or is the witness impartial? [ 22 ] With respect to the first three charges, the main prosecution witnesses, then-Privates U. and O.

Turemis were relatively new to Canada, and although English was not their mother tongue, they seemed to understand the questions asked, but were not always precise in explaining what occurred. As an example, in cross-examination, defence counsel had to pose his questions a few times in order to ensure that they understood the suggestion he was putting to them. [ 23 ] The younger then-Private U. Turemis often rambled on with passionate views, and genuinely wanted to assist the Court by providing it with as much information as possible which caused the Court to have to caution him.

Under cross-examination, when defence counsel put his suggestions to him, I found that he was extremely honest and made extensive efforts to consider the questions and correct himself if it was appropriate. [ 24 ] Both brothers came across as honest and were committed to telling the truth. However, since they only stayed in the FTSE program for a short period before quitting and moving on with their careers, given the passage of time, they struggled to remember some details.

This was understandable and on non-critical issues was not a concern, but there were some inconsistencies on critical evidence that diminished the reliability of their testimony on those evidentiary matters. [ 25 ] Both Turemis brothers did admit to feelings of animus towards the accused that arose from an unrelated incident that occurred

during the FTSE program. However, they both vigorously denied that they lodged a complaint in retaliation. I found that they weregenuine in expressing their fear of consequences of getting charged or getting into trouble. Under cross-examination, the younger brother,then-Private U. Turemis confessed that when they learned his older brother might be in trouble, he was genuinely afraid and did not wantto go to jail. Since they were new and just learning the culture, they confessed that they were afraid of being charged as they were both inuniversity and trying to avoid any trouble.

I found them both credible and reliable with respect to most of their testimony, but I was alsocareful to measure any inflammatory comments arising in their testimony against other unbiased or independent evidence. [26] The passage of time in the context of this case affected the Court’s assessment of the reliability of some of the evidence andthe Court needed to assess the evidence from all the witnesses in order to make a determination of what evidence as a whole should bebelieved. [27] Private Okafor, who was an unbiased witness to the allegations set out in charges 1 and 2, gave evidence in a straightforward,clear and concise format.

He was clear on what he remembered and when he was not sure, he stated so. He provided important contexton the charges before the Court and what he observed. His memory of what unfolded in the shower incident was quite precise on anumber of details and provided the Court with important collaborative evidence on many critical elements that the Court needed todecide. I found him both credible and reliable in most of his testimony. [28] Although she was an important witness to the particulars set out in charge 4, then-Corporal Goodrunning was originallyhesitant to testify.

At a late juncture, she had a change of heart and her testimony provided a very helpful and balanced perspective towhat occurred. She was honest, non-confrontational and measured in her responses to the questions. She was not biased nor did shedemonstrate any animus towards any of the witnesses or Corporal Reid. She admitted what Corporal Reid said while in her presence, butshe was also clear to clarify the context of what was said and what was not.

She testified to a number of improper comments that weremade that do not make up the particulars of the charge, which gave the Court confidence that she was not hesitant to tell the whole truth.She expressed her pride in the Bold Eagle program and explained her reasons, but she also described why she was disappointed andembarrassed by some of the comments that Corporal Reid made. She was not hesitant to be critical of Corporal Reid, but she alwaysprovided a perspective for these comments.

She was also not hesitant to explain why she made certain decisions, including her decisionto release from the Canadian Armed Forces (CAF). I found her testimony to be clear and consistent throughout and she did not waiverwhen she did not believe something to be true. I found her both reliable and credible. [29] Sergeant Weremy provided evidence on what transpired within 41 Service Battalion during the 2019 FTSE program. Heexplained how the unit was short-staffed during that summer and his involvement in the program after a last-minute posting.

Heprovided helpful evidence to confirm what comments he had provided regarding the beret of the then-Private U. Turemis which providedhelpful context to what had occurred. His evidence was limited to these areas. Assessing conflicting versions [30] In assessing a case with competing versions of what happened, where credibility is a central issue and the accused hastestified, the Supreme Court of Canada (SCC) has provided guidance to trial judges in R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742 commonly referred to as the W.(D.) test. [31] Since the W.(D.) test was first enunciated by the SCC, the test has also been found to apply not just to the testimony of anaccused, but it also applies to defence witnesses other than an accused (see R. v. Haroun, (SCC), [1997] 1 S.C.R. 593,Sopinka J., writing in dissent) as well as in circumstances where a conflicting exculpatory account emerges through the Crown witnessesor in any other evidence (see R. v.

B.D., 2011 ONCA 51 Blair J.A. at paragraph 114). [32] To assist judges in identifying reasonable doubt in the context of conflicting testimonies, in W.(D.), the SCC recommends thata trial judge consider the exculpatory evidence of the accused in three steps. The three steps are: (

a) first, if I believe the exculpatory account advanced by the defence, obviously, I must acquit; (

b) second, if I do not believe the exculpatory account advanced by the defence but I am left in reasonable doubt by it, I mustacquit; and

(

c) third, even if I am not left in doubt by the exculpatory account advanced by the defence, I must ask myself whether, on thebasis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [33] Further, in Regina v. C.W.H., (BC CA), [1991] BCJ No 2753 (QL).Wood J.A. suggested an addition to thesecond part of the three-part test set out in R. v. W.(D.).

At paragraph 24 of C.W.H., his Lordship said: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [34] A court martial is not an inquiry to determine what happened. We may never know. It serves only to determine whether theprosecution has proven the elements of the offences before the Court beyond a reasonable doubt. The W.(D.) framework aims to preventa conviction where reasonable doubt exists. [35] Of course, the above tests taken alone are oversimplifications of the analysis that a trial judge must undertake.

And quiteoften the judge has to apply the W.(D.) test at various stages, with respect to the critical elements or vital points of the decision-makingprocess such as the elements of the offence or the “elements of a defence”. [36] What this means is that if there is evidence on vital issues where the accused is believed, then it could raise a reasonabledoubt on what the prosecution is required to prove beyond a reasonable doubt to secure a conviction (see Paciocco, David M. “Doubtabout Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017), 22 Can. Crim. L.

Rev. 31). [37] Generally, the outcome of a trial where there are diametrically opposed positions will depend on the reliability and credibilityof the evidence given by the witnesses. The appropriate approach in assessing the standard of proof is to weigh all the evidence and notassess individual items of evidence separately. [38] In general, I found that the accused had a very polished memory of the events that unfolded in relation to the charges. Giventhat he was charged and has lived with this hanging over his head for a long time, he has had a great deal of time to reflect.

This iscompletely understandable and no negative inference necessarily accompanies this fact. [39] I found most of his testimony to be believable. He was not hesitant to admit facts that were unflattering which included theadmission of misconduct that is not otherwise disclosed in the charges. He testified in a manner that I thought was very clear andstraightforward.

He provided a helpful perspective of what he was thinking at the time and explanations for his observed conduct.However, I did not find all of his explanations for certain actions to be believable and I will explain this more specifically in my analysis.

First Incident [40] The first two charges relate to the exact same set of particulars, “In that he, on or about 13 June 2019, at or near Debney Armoury, Edmonton, Alberta, ordered Private U Turemis into a shower, andwithout justification watched the Private shower.” [41] The evidence suggests that the incident which underlies the particulars arose after then-Private U. Turemis was having aproblem with forming his beret. Then-Private U.

Turemis explained that he was advised by different people that it was a problem and heacknowledged that there had been several exchanges between himself and Corporal Reid regarding his beret: “A. He would always remind me about it. Your beret looks horrible. Your beret looks horrible. I really did try my best to make it lookproper. At my home I tried doing it again and again. I don’t know why, I just couldn’t make it look proper, I guess, as everybody else. Itried to. It looked proper to me, but I guess it wasn’t. I mean he was always complaining. Nobody else was complaining about it.

Likethey complained at first. So I went home. I took a shower, but I guess it just wasn’t good enough.”

[ 42 ] On the morning of the alleged incident, then-Private U. Turemis arrived for PT with his PT clothes on. He was not wearing his beret. [ 43 ] In his testimony, then-Private U. Turemis was very clear that he was extremely uncomfortable showering with other men and when he needed to shower, he went home to do so. He stated: “A. I mean, I’m originally from Turkey. Whenever I saw the people in the shower there, kind of naked, I felt uncomfortable. I don’t like that kind of stuff, so I just go home and do it.” [ 44 ] Under direct examination, he described the incident that occurred in the shower as follows: “A.

Well then I first came to PT I saw Corporal Reid inside the gym at the beginning of the day. And after that he left. We started doing our training. And after that, when the training was done, I was trying to go to my locker and from there he came, approached from behind and he said, we’re gonna take a shower together. I didn’t want to at first, but he threatened to have me charged. . . . So I went—I got my towel. It wasn’t the biggest towel. I just had a little towel. So we went into the locker room or the washroom; the first . . .. When you get out to gym, you go to the right. It’s the first bathroom over there.

So over there, you know, I was gonna get undressed. I asked him, like are you gonna take a shower with me? He said, no. So you know, I assumed he was just gonna wait out there. So I said, okay. So I got undressed. I went into the shower. I put my beret on and I’m trying to . . .. I’m taking a shower and making it . . .. And out of nowhere he just comes like right beside me. And he just like holds one of the curtain up in his hand. He was just watching me. I’m like—I was kind of like—I didn’t really understand what’s happening at that point. So he’s just watching me. I’m like—I’m trying to look at him.

He’s looking at me smiling and then he’s looking down there. I’m like, what’s going on here? I’m trying to like form my beret. I mean I probably said a couple of things to him. I’m trying to remember properly, but I’m like, he wasn’t really focussed on the beret that much. And he’s like staring at me. I turn around he starts staring at me. And then after that, like back then I used to wear glasses. So I like I just got Lasik right now. But even then, like it wasn’t that far of a distance. I was able to see Okafor come in. And he made contact with Okafor. They talked something. And then he left.

And I just—I got out the shower. I’m like, what just happened here? And I was kind of like confused as well. I’m like I didn’t really . . .. Yeah, it was just a weird scenario all around.” [ 45 ] Then-Private U. Turemis later described what unfolded afterwards with respect to Corporal Reid’s effort to help him form his beret. He testified as follows: “Q. And then you just told us that Corporal Reid met you in the hallway? A. Uh-huh. Q. What happened there? A. He said, we’re gonna take a shower together. Like he’s gonna teach me how to form it. But I said, no, I’ll just go home.

He threatened to charge me.” [ 46 ] In his testimony, then-Private U. Turemis described what happened next: “A. Well, first things first. I had to go to my locker and get my beret from my locker and a towel. And from there I came back and he was waiting there. And we went in. And from there, like you know, I asked him, you know, like you know are you coming in? He’s like— he’s like he told me no he’s not gonna come in. So I thought he was just gonna stay out there and just, you know, I was just gonna go in take a shower, form the beret, come out. Like get dressed, come out and he’s gonna judge me on that.

But that’s not what happened.” [ 47 ] Under direct examination, then-Private U. Turemis testimony continued as follows:

“Q. What did you do when you first entered the shower room? A. What did I do? I asked him, is he gonna take a shower with me? He said no. So I’m like okay. So I went to the . . .. There’s like a toilet area here and then is like the change and then into the shower. So I went to the shower side. I got unchanged. I went inside. I closed the curtain. And I just turned the water on and I started washing my head with the beret on.” [ 48 ] The evidence suggests that the shower area was separated from the changing area by a curtain.

He explained that Corporal Reid never got undressed and did not enter the shower area itself. Then-Private U. Turemis described where Corporal Reid was located during the time he was showering: “Q. So you told us that you’re in the shower with your beret. Where’s Corporal Reid at this time? A. He wasn’t in the shower like in the change room. He was kind of waiting outside, like in that—where the sink is. And then when I was in the shower, when I turned it on, then he came in. Q. He came in where? A.

Well, into the change room and then, like the curtain is kind of closed and he just like kind of opened the curtain and he just started watching me. Q. How far away from you? A. Literally almost right next to me. Like about arm distance, I’d say, maybe even closer. I mean, there’s no —there was no steam or anything. I wasn’t really doing very hot. I don’t even know if you can turn them on to . . . Yeah. Q. How was Corporal Reid dressed? A. He was fully dressed. Q. What was he wearing? A. See that’s the one thing I don’t remember fully. But I don’t think he was dressed in his . . ..

Like he was dressed in normal attire. I don’t believe he was dressed in military clothing. Q. What do you mean by normal attire? A. Like he was wearing a T-shirt. Like he wasn’t . . .. I don’t remember him wearing military attire at that time. Q. Did Corporal Reid remain dressed the entire time? A. Yes. He never got undressed .” [ 49 ] Under direct examination, he described why he felt uncomfortable. “Q. What was Corporal Reid doing as you showered? A. Staring at me. Q. How do you know that? A. I mean, he was right next to me.

It’s kind of hard to not be able to tell when a person’s eyes are like staring at you, kind of like looking up and down at you. Q. How did you feel? A. At first I kind of felt creeped out. I’m like, what’s happening here? This is not entirely related about forming a beret. He’s just watching me take a shower. He’s just staring at me all the time; just looking down there, looking up, looking down there. At first I thought maybe I should turn around. He’s just staring, looking up and down. I’m like, this just feels creepy.” [ 50 ] While then-Private U.

Turemis was showering, a third party entered the shower, being Private Okafor. Then-Private U. Turemis testified that he showered for approximately two to three minutes and then described the final verbal exchange between the two of them as follows: “Q. Did Corporal Reid say anything? A. No. No, he did not teach me or say much anything. At the very end when Okafor came in, he— they looked at each other. They said something to each other and then he left. And then like he looked at me and then I said like you know, you know, like it’s pretty much done almost. I don’t know what more to do. I said, are we good here?

He said yes and then left.”

[ 51 ] When asked to describe why he interpreted Corporal Reid’s request to take a shower as an order, he testified as follows: “Q. So Corporal Reid told you to take a shower and you interpret that as an instruction; an order? A. Well when he said—like he said, we’re gonna take a shower together and I told him like, you know, I’ll just go home and I’ll just reform it. And he threatened to charge me. And it kind of became an order after that.” [ 52 ] Then-Private U. Turemis was asked why he went into the shower: “Q. Okay. You met Corporal Reid in the hallway. He told you something. How did you feel about that?

What was your initial reaction to that order? A. Well at first I was surprised, but then again, I would remember people really saying, you know, people are like everybody in the FTSE group were saying, you know, they all going in there take a shower together. So I thought at first, I’m like, okay, you know, this is—is this somehow the part of this military life I had to get used to taking naked showers with other men? It kind of made me feel creeped out at first, but I’m like okay, like if I don’t do this I don’t want to be charged.

Like last thing I want to do is go to jail for two years for not taking a shower with a man. I’m like, this is weird, but okay. So I went and I thought he was gonna come in there and try to take a shower with me to teach me the beret, but he just stared at me and just didn’t like—he didn’t even teach me how to form the beret. He didn’t say anything about the beret. There was like nothing about the beret. I was just getting my head wet. That’s about it.” [ 53 ] Then-Private U. Turemis admitted that he did feel some animus towards Corporal Reid for something that had happened to his brother.

He testified that he learned from a co-worker that there was a pending charge against his brother. He said his brother was scared and did not want to go to jail and then he just kind of quit. Although it was never made clear as to the timing of the various events, he was very straightforward and honest in admitting how he felt towards Corporal Reid afterwards. He adopted his previous statement where he stated to the investigator that “ever since then I wanted to punch him a couple of times, like just choke him out maybe.” [ 54 ] Additional evidence provided by then-Private U. Turemis was as follows: (

a) under cross-examination, he admitted that Sergeant Weremy commented on his beret and other issues. He could not recall whether he made comments immediately before the shower incident; (

b) under cross-examination, he admitted that Corporal Reid had tried to help him fix his beret prior, but denied that he assisted him at the sink in the front bathrooms, but after further questioning he did not deny that there was a possibility; (

c) also under cross-examination, he explained that his memory is that when they were in the hallway, Corporal Reid approached him and said “let’s go into the shower” and when he stated that he would go home, then he threatened to charge him; (

d) under cross-examination, he confirmed that Corporal Reid told him to turn on all the taps in the showers as other persons would be joining them and the water gets warmer as they use it. They wanted hot water which was important for forming the beret; (

e) under cross-examination, he denied that there was any instruction or discussion regarding the forming of the beret; (

f) when Private Okafor entered the shower area, he heard Private Okafor speaking with Corporal Reid, but admitted that he could not hear well what was being said; (

g) he asked Corporal Reid if they were done when he saw Private Okafor enter to which Corporal Reid said that they were;

(

h) he went to his car and his brother was sitting in the car waiting for him; (

i) he told his brother what happened and at first his brother laughed and then he got furious; (

j) his brother did not believe him at first, but then his laughter changed to anger which he witnessed when Corporal Reid approached their car; (

k) Corporal Reid then approached them in the car (on his brother’s side of the car) and told us that his brother’s beret was pretty bad; (

l) he said we are going to take a shower; (

m) he said it was the same day as his incident; (

n) his brother told him to go away with rude words; and (

o) his brother was angry at him for letting the incident happened; Corporal Reid’s evidence [ 55 ] Conversely, the accused testified that others, most notably Sergeant Weremy, a full-time regular support staff (RSS) made observations about then-Private U. Turemis’s beret. Corporal Reid told the Court that at that time, his beret was not up to standard. In response to the observations raised, Corporal Reid tried on several occasions to assist then-Private U. Turemis with forming his beret. He stated that Corporal Reid assisted him once in the office and he also suggested that he do it in the shower at home.

However, despite that assistance, he was still receiving observations. He explained that approximately one week beforehand, he assisted him in immersing the beret in hot water and then they went back to the office. [ 56 ] Corporal Reid told the Court that the day before the incident, then-Private U. Turemis came in, received comments regarding his beret and he was flustered. He explained that he offered assistance again and recommended that he do it in the shower. He stated that it was then-Private U. Turemis who asked if Corporal Reid could assist him in the showers after PT.

He was adamant that he did not exert any influence for then-Private U. Turemis to use the showers at the armoury. [ 57 ] Corporal Reid further explained that the next morning, he showed up early, walked to the gym where he noted that then- Private U. Turemis was. He then headed back to his office to answer a few emails before returning to the gym closer to 0830 hours. He approached then-Private U. Turemis to confirm that he still wanted his assistance.

He advised the Court that together they went to his car where they grabbed his shower kit and beret. [ 58 ] When they arrived at the showers, he explained that he went to the washroom area as the member undressed and he told then- Private U. Turemis to turn on all the showers. [ 59 ] He does not recall anything separating the communal shower area and the rest of the bathroom facilities. If there was a curtain, it would have been open. [ 60 ] He explained that he had wet his own beret at the first shower head to show him what needed to be done. A few minutes later as he was explaining things to then-Private U.

Turemis, Private Okafor entered. He stated that he did say hello.

[ 61 ] He explained that he was wearing his Canadian Disruptive Pattern combats (CADPAT) and his Terra boots.

When asked why he was looking down, he explained that his Terra boots were quite ruined on the soles and he was trying to make sure he would not slip as he was using two hands on the beret. [ 62 ] He explained that he was not surprised when Private Okafor showed up as it was after PT and he expected that the showers would be in use very soon. [ 63 ] Corporal Reid also advised the Court that he had learned how to form a beret using the shower technique from another member and he did not see anything odd about doing it in the shower.

Under cross-examination, he explained that in forming the beret, the shower permits you to really soak the beret and hot water is better and with it on your head, you can shape it and let it dry that way.

He admitted that although you could do it in a sink, it is harder to shape a beret as the water cools. [ 64 ] Corporal Reid denied that he gave either of the Turemis brothers an order to have a shower. [ 65 ] Corporal Reid denied that he was aware that the Turemis brothers were uncomfortable showering in the communal showers or that he observed them going home to shower after PT. [ 66 ] Corporal Reid confirmed that there was animus between himself and the Turemis brothers. Private Okafor [ 67 ] With respect to the particulars, the independent evidence from Private Okafor was as follows: (

a) he was participating in the FTSE program with then-Privates Turemis in the summer of 2019, but he worked as a vehicle technician; (

b) he confirmed that then-Private U. Turemis’s beret was messed up and needed work. He described it as a “chef’s hat”; (

c) on the day of the alleged incident, after PT, he walked into the shower area while Corporal Reid and then-Private U. Turemis were there; (

d) he could hear them communicating as he was getting ready to take a shower; (

e) although, he could not recall the exact words exchanged between them, he explained that they communicated and some instruction was provided regarding the forming of his beret for approximately four minutes; (

f) it was expected that there would be members in the shower at that time of the morning after PT; (

g) he described that there was a flimsy curtain separating the lockers and the bench and the communal showers and that the communal showers are situated beyond the curtain; (

h) he stated that when he first entered, he only saw Corporal Reid; (

i) he recalls that the shower curtain was open and that Corporal Reid was standing leaning against the corner wall, a wall that

is half a metre wide, with his arms crossed, staring towards the showers; (

j) Corporal Reid remained dressed the entire time and he described him as wearing civilian attire, no beret and his arms were crossed but he could see his right hand which was closed; (

k) under cross-examination, he re-confirmed that Corporal Reid was wearing blue jeans, red shirt and black Converse shoes and denied that he was wearing CADPAT. He explained what Corporal Reid was wearing that day stood out; (

l) he was in the shower room approximately four minutes before he went into the showers; (

m) when he arrived in the showers he could hear their voices but only saw then-Private U. Turemis when he entered the communal shower area. He explained that there was a conversation between the two regarding the beret; (

n) he stated that Corporal Reid was approximately a metre and half, two metres from where then-Private U. Turemis was showering; (

o) he knew that then-Private U. Turemis always went home to shower at his brother’s place because he told them he was not comfortable using the public shower; (

p) he found it strange that then-Private U. Turemis was in the shower so he spoke to him and then-Private U. Turemis told him he was supposed to fix his beret; (

q) he heard then-Private U. Turemis’s voice first and although he cannot recall the exact words, the gist of the conversation was on how to form the beret. Under cross-examination, he explained that the discussion he heard was more about the flap and the shape of the beret, however, he admitted that the conversation began before he arrived so there were parts of the conversation he might have missed; (

r) by the time Private Okafor had finished changing, he heard Corporal Reid ask if then-Private U. Turemis’s beret was okay, and then he is not sure if anything else was said afterwards; (

s) he did not see Corporal Reid physically assist then-Private U. Turemis but Corporal Reid commented and made remarks; (

t) he described Corporal Reid as looking with his eyes going up and down, at then-Private U. Turemis; (

u) when asked if what he witnessed implied that it was sexual in nature, he confirmed that he described it as parental, more watching and supervising; (

v) he felt it was a bit strange since if he was helping him fix his beret, he did not need to constantly watch over then-Private U. Turemis; (

w) when Private Okafor entered the shower, then-Private U. Turemis was wearing nothing but his beret; (

x) then-Private U. Turemis had no towel or anything with him, just his PT gear;

(

y) when asked to describe Corporal Reid’s demeanour, he described him as having a “default” face, being a straight face with no emotion; and (

z) he stated that Corporal Reid did notice him and although he did not really have a conversation with Corporal Reid, they exchanged a “hi” and that was it. Then-Private O. Turemis [ 68 ] Then-Private O. Turemis’s testimony with respect to this incident was as follows: (

a) on the day of the alleged incident, both he and his brother travelled to the gym for PT in their gym clothing. Neither of them were wearing their berets; (

b) Corporal Reid was not at PT that day but they saw him close to the end of their PT session; (

c) about five to ten minutes before it ended he saw Corporal Reid standing between the two double doors; (

d) he explained that they had an idea of what would happen; (

e) Corporal Reid came up to his brother and said “let’s go”; (

f) he said that his brother looked at him kind of nervous and they went to the shower; (

g) he exited the building and ran to his car to wait for his brother; (

h) when asked if Corporal Reid and his brother went to the car prior to the shower, he denied that; (

i) about twenty minutes later, his brother returned to the car and looked at him angrily and said “let’s go”. He said at that time, he did not talk much to his brother; (

j) Corporal Reid approached the car and said, “let’s go” and he looked at him and said, no. He explained that his brother came out first and shortly thereafter, Corporal Reid came out; (

k) he said that after that Corporal Reid left; (

l) at that time, he did not really know what happened as he did not have the details from his brother, which he explained his brother told him later on; (

m) on the day of the incident with his brother, he testified that Corporal Reid was wearing his normal Army clothing; (

n) when asked if Corporal Reid was wearing his beret, he said he did not know;

(

o) he said that his brother did not talk when they drove home; (

p) they returned to work at 1000 hours that day and thinks he went to the orderly room; (

q) when questioned on whether Corporal Reid and his brother had gone to the car to pick up shower kit he simply responded by saying he went to his car and they went to the shower and later suggested it did not happen; (

r) he told the Court that he learned what happened to his brother the night of the incident and that explained his actions the next morning. He could not recall the specific time his brother told him, but he believes it was on the way home or at home; (

s) when his brother originally told him that he took a shower, he did not know at the time that Corporal Reid had watched him and when he learned this, he became upset describing himself as furious; (

t) they previously had received direction on how to wet and form the beret in a sink, but he thinks he might have “messed his up” when he put it in his pocket; (

u) he explained that they constantly felt pressure that they might get charged for something; (

v) they had a couple of car rides to the north base and they were shown the Canadian Forces Service Prison and Detention Barracks. [ 69 ] There are a number of inconsistencies in the critical evidence and some exculpatory evidence with respect to Corporal Reid’s position that are notable: (

a) then-Private U. Turemis stated he was not completely sure that Corporal Reid was wearing PT gear while Private Okafor stated that Corporal Reid was wearing blue jeans, red shirt and black Converse shoes. Conversely, then-Private O. Turemis said that he believed Corporal Reid was wearing his CADPAT which is consistent with the testimony of Corporal Reid; (

b) Corporal Reid testified that the day before the alleged incident, that then-Private U. Turemis had asked for help with his beret and they discussed helping him the next morning after PT; (

c) when this position was put to then-Private U. Turemis, he originally denied it, but it also appeared that he was struggling with understanding the question being put to him. He clarified that Corporal Reid had previously given him advice on how to form his beret in the shower, which he tried at home; (

d) his brother, then-Private O. Turemis testified that on the morning of the alleged incident, they were ready and had an idea what would happen; (

e) although then-Private U. Turemis testified that there was no real discussion regarding the forming of the beret, Private Okafor testified that when he was changing he heard them interacting for about four minutes discussing the forming of the beret; and (

f) Private Okafor testified that in his opinion, there was nothing sexual about what was occurring. [ 70 ] I reviewed the evidence as a whole and closely considered all the evidence of Corporal Reid. After applying the W.(D.) test to

the particulars, I came to the conclusion that I do not believe the exculpatory account advanced by the defence. I considered the evidence of then-Private O. Turemis who testified that when they arrived that morning, they were ready for what would happen, which I considered to be exculpatory evidence consistent with the evidence of Corporal Reid that there had been a prior discussion on the subject of some sort. However, I find that this by itself does not mean that Corporal Reid did not order and pressure then-Private U.

Turemis that morning with respect to showering to form a beret. [ 71 ] Consequently, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 72 ] Upon my review of the evidence, although I do believe Corporal Reid’s evidence that then-Private U. Turemis asked Corporal Reid for assistance in the forming of his beret, at various times, based on the consistency of the evidence, I do not automatically accept that he did so on that particular morning. Ordered then-Private U.

Turemis into a shower [ 73 ] The consistency of the evidence given by both Turemis brothers was that Corporal Reid was waiting for then-Private U. Turemis after PT, between the two doors and when they were done, he approached then-Private U. Turemis saying “let’s go” which was understood to be an order to go and fix his beret in the shower. [ 74 ] Then-Private U.

Turemis testified, that he specifically told Corporal Reid that he would form his beret in the shower at home and that Corporal Reid insisted that he do it now and then there was some suggestion that he could be charged, which triggered a fear that both Turemis brothers held. In his testimony, then-Private U. Turemis was insistent he felt he would be charged if he did not take a shower. The evidence also suggests that then-Private U. Turemis had an aversion to showering with what he described as “other naked men” and based on the whole of the evidence, it would not be something that he would voluntarily do.

I believe then-Private U. Turemis’s evidence on this point. [ 75 ] Corporal Reid testified that they both went to the car where then-Private U. Turemis retrieved his shower kit prior to going to the shower. In their respective testimonies, neither Turemis brother supported this fact. Further, then-Private U. Turemis stated that in response to what he interpreted as an order to take a shower, he went to his locker to get a small towel that he kept there. Private Okafor testified that when he encountered then-Private U. Turemis in the shower, he did not have anything with him other than his PT gear.

Although the evidence of Private Okafor and then-Private U. Turemis differs on whether or not then-Private U. Turemis had a towel with him, the consistency of their evidence permits me to infer that then Private U. Turemis was ill-prepared to shower that day and did not bring anything with him that morning. [ 76 ] The evidence is consistent with the fact that then-Private U. Turemis was pressured to go into the shower. I accept the evidence of then-Private U. Turemis that he felt he had no other choice than to take a shower that morning.

For this reason, I find that the direction provided by Corporal Reid, was in fact an order. Without justification watched the Private shower [ 77 ] Although I do believe a good portion of Corporal Reid’s evidence, I do not believe that the staring that was consistently described by the other witnesses was the result of him looking down to avoid slipping in his Terra boots. Notwithstanding what he was wearing, it simply does not make sense.

If Corporal Reid was looking down to avoid slipping because he was using his two hands to adjust his beret, the natural inclination would be to be looking consistently in the direction of the floor rather than looking up and down directly at the member as the evidence suggests. He also could have safely waited in the dry area and then checked in on then-Private U. Turemis sporadically. [ 78 ] Since I do not accept the evidence of Corporal Reid on this point, I must determine whether, based on the evidence, I do accept the evidence the prosecution has proven that Corporal Reid watched then-Private U.

Turemis without justification. [ 79 ] Based on the evidence given by Private Okafor, Corporal Reid was not demonstrating while using his own beret, but rather that he was actually leaning against the wall observing with his two hands crossed. Private Okafor was very clear on this point. I accept that his evidence is not only credible on this point, but I also found it reliable as he explained that it took him approximately four minutes

to undress and he sporadically observed what Corporal Reid was doing. He explained in his testimony that while changing he could only see Corporal Reid and he did not see then-Private U. Turemis until he entered the shower himself. [ 80 ] I find that the independent evidence of Private Okafor corroborates the testimony of then-Private U. Turemis that Corporal Reid continuously watched him for approximately three to four minutes while looking him up and down. Although, the evidence does not suggest that it was sexual, it also does not suggest that it was justified in the circumstances.

There is simply no reason to glare or stare at an individual in such a fashion while providing direction on the forming of a beret. [ 81 ] Consequently, I find that the prosecution has proven the particulars of the charge to a standard beyond a reasonable doubt. First charge:

section 93 of the NDA for disgraceful conduct [ 82 ] The finding on the first charge depended not only on my assessment of the credibility of the witnesses and that the act particularized in the charge sheet has been proven beyond a reasonable doubt, but the prosecution also had to prove that the actions of the accused were disgraceful within the context of

section 93 of the NDA . [ 83 ] A finding that the alleged conduct constituted disgraceful conduct requires an assessment of the accused’s conduct in its context. In assessing the proven conduct, a judge can apply their military experience and general service knowledge and engage in a contextual assessment from the perspective of both the CAF and the military community. [ 84 ] I find that on their own, the particulars set out in the charge itself are particularly inflammatory.

This is why a contextual assessment is important in determining whether the particularized conduct rises to the level of disgraceful. [ 85 ] I must consider the manner by which the incidents might be viewed in both the military as well as the non-military community. [ 86 ] The term “shockingly unacceptable” is a term that is often used to describe incidents that are disgraceful. In addition, there are many other descriptions that capture the essence of what is meant by the term, such as shameful, dishonourable, degrading, inducing strong revulsion or profound indignation.

It is particularly important that conduct that falls short of this, not be conflated with the most serious of conduct. [ 87 ] Sergeant Weremy testified that then-Private U. Turemis’s beret was always a mess and that he repeatedly told him to fix it and that the latter ignored him for a long time. He told the Court that Corporal Reid was there on several occasions when this occurred. [ 88 ] Private Okafor also confirmed that then-Private U.

Turemis’s beret was also a mess or “chef’s hat”. [ 89 ] Sergeant Weremy also confirmed that in the old days, soldiers would form their berets in the shower and Corporal Reid explained that was how he formed his own beret in the early days, doing so with another private.

However, there is a distinct difference between members doing this voluntarily in an environment where the soldier feels comfortable as compared to a situation where the complainant felt pressured to do something which culturally he was not comfortable with. [ 90 ] Applying my own military experience, I have observed this type of assistance being offered, but it was always done with the recruits wearing bathing suits or other clothing that they were comfortable wearing.

I agree with the position of the prosecution that there is no reason for any supervisor to have a private parade naked in order to assist them in any military task. This is completely unacceptable, but the ultimate question is whether in the particular context of the facts of this case, it amounts to disgraceful conduct. [ 91 ] In considering the context of the facts of this case, I considered Corporal Reid’s rank, the position he held at the time, his own experience and the external factors surrounding the incident in order to put it in the appropriate context.

[ 92 ] I find that Corporal Reid exacerbated his already bad decision of directing the private into the shower to finally resolve the problem with his beret, by then exercising very poor judgement in violating the social norms of communal showers by constantly watching or observing him. He was not focussed exclusively on the forming of the private’s beret. Although the Turemis brothers were not completely comfortable with showering in communal showers, they are not uncommon on military bases, in sport locker rooms or other places in Canadian society.

However, the use of such communal showers demand the respect of everyone who uses them and there are indeed social norms that must be complied with. Without the need to outline them, I find, based on my military experience, that glaring or staring at another person while they are naked is a violation of the expected norm. [ 93 ] I also accept the evidence of Private Okafor that although what he observed was very odd, he confirmed that in his assessment what occurred in the shower was not sexual, but rather appeared to be more supervisory.

I accept that there was no touching and there was no attempt to do so either. [ 94 ] Based on the evidence, I also accept that Corporal Reid was a corporal with very limited experience. In fact, at that time, he had only been enrolled in the CAF since May, 2016; three years previous. [ 95 ] Although senior in rank to the privates, I note that he was also significantly younger then the recruits at the time and could have benefited from mentoring and the guidance of strong leadership himself.

The evidence suggested that due to a shortage of personnel, the FTSE program was being administered by an officer cadet and there were only a few other RSS staff who worked within 41 Service Battalion to support the program. There was also a high turnover of personnel due to training and postings in the summer months. Corporal Reid was not an officer or senior non-commissioned officer (NCO) with significant experience.

Also, based on the evidence before the Court, there is no indication that he had completed any significant leadership courses or training. [ 96 ] The evidence also suggested that Sergeant Weremy, who admitted to commenting continuously and negatively on the shape of then-Private U. Turemis’s beret, is a very senior and experienced regular Force senior NCO. Sergeant Weremy admitted in court that he had told Corporal Reid that in his experience, they always formed their berets in the shower.

I accept that as misplaced as Corporal Reid’s order was, he sincerely believed that his direction would assist then-Private U. Turemis in the necessary and proper forming of his beret. Although there was not a great difference in their ranks, he needed to be aware that he was speaking to a recruit, who was new to Canada and from a different culture.

His position in mentoring placed him in a particularly important position where based on the instruction that had unfolded at the FTSE program, even a strong suggestion would be interpreted as an order to a recruit and was completely improper. [ 97 ] I accept that Corporal Reid did not attempt to steer then-Private U. Turemis into an isolated washroom area and that based on the timing of the shower, all the evidence suggests that other recruits were expected to show up to shower. Based on the evidence, I did not find that he ordered then-Private U.

Turemis into the shower for any other reason than to assist him in the forming of the beret. This was evident when Corporal Reid provided him direction to turn on all the showers so they would run warm as others would be coming and it assists in the overall heat of the water. [ 98 ] I do believe that Corporal Reid did not intentionally order then-Private U. Turemis into the shower to stare at him.

This is an important distinction here that reduces the inflammatory nature of the allegations and a factor that must be considered in the assessment of whether this incident rises to the level of disgraceful. [ 99 ] As misguided as the conduct is, the evidence of Private Okafor suggests that there was specific direction being given by Corporal Reid to then-Private U. Turemis regarding how to form the beret as Private Okafor overheard him commenting on the flap and the shape.

I find that the staring or constant observing by Corporal Reid was incidental to this. [ 100 ] In placing the particulars in context, with respect to the allegations of this charge defence counsel argued, then-Private U.

Turemis testified he expected that Corporal Reid might get his hand slapped or something similar suggesting that the complainant himself did not necessarily view these particular allegations as falling within the level of disgraceful conduct. [ 101 ] After considering all the evidence, based on the facts surrounding this case and the contextual assessment, the Court is not satisfied beyond a reasonable that the particularized conduct were disgraceful. Charge 2 –

section 95 of the NDA - Ill-treated a person who by reason of rank was subordinate to him

[ 102 ] With respect to the second charge, a NDA

section 95 offence is not reserved exclusively for physical contact, being “striking”, but particular care must be exercised not to broaden the nature of conduct that fits within it. To do so compromises the nature of the offence, creates mistrust and invites unintended consequences. [ 103 ] The proof of a

section 95 offence requires a component of cruelty in the conduct, which may be actualized where the senior- ranked person disregards or takes pleasure in the pain or suffering of the lower ranked individual. This can occur when they knew or ought to have known that the intended conduct would not just be unwelcome, but that it amounted to downright meanness. [ 104 ] During the testimony of then-Private U. Turemis, he described how he always returned home to shower due to his discomfort in showering in the communal environment. Under questioning by the prosecution, he stated: “A.

I mean, I’m originally from Turkey. Whenever I saw the people in the shower there, kind of naked, I felt uncomfortable. I don’t like that kind of stuff, so I just go home and do it.” [ 105 ] In his testimony, Corporal Reid denied that he was aware that the brothers went home to shower or that he knew they were uncomfortable showering in the communal showers. [ 106 ] Private Okafor was clear in his testimony that up until that time, neither of the Turemis brothers ever showered at the armoury. In fact, he was so surprised when he saw then-Private U.

Turemis in the shower that he specifically inquired why he was there. It was also notable that Private Okafor did not work in the orderly room so he only had limited contact with the Turemis brothers, but yet he was aware of the particular sensitivity of then-Private U. Turemis, suggesting that there was broad knowledge of this. The evidence also suggested that the Turemis brothers, originally from Turkey, were somewhat outspoken. In his testimony, then-Private U.

Turemis was very clear on his aversion to showering with other naked men and that he found the custom culturally different. [ 107 ] The prosecution argued that given the time Corporal Reid spent with the Turemis brothers, including supervising them daily in the orderly room, it was untenable that he did not realize that the brothers went home to shower every day after PT.

They did not keep it a secret and it would have become relatively obvious to him when they went to their car after PT rather than to the shower and returned back to the armoury afterwards to begin work. [ 108 ] The evidence suggested that it was an approximate seventeen to eighteen-minute commute back to their place, which would be a thirty-four minute round trip, and they only had one hour to get there, get cleaned up, eat and to report back to their respective work areas.

Corporal Reid was their supervisor in the orderly room so he had to be aware when they arrived back to the armoury and reported to the orderly room each day. The evidence suggests that by the morning of the shower incident, Corporal Reid would have supervised the Turemis brothers for at least six weeks. [ 109 ] Applying my own military experience, after PT, members are normally provided the time to shower and get a bite to eat before they report to work.

Members who showered at the armoury would have an extra thirty-four to thirty-five minutes to enjoy coffee or breakfast together prior to reporting to their work places. Those who needed to go elsewhere would normally follow a different routine. [ 110 ] There was also evidence before the Court that the brothers reported late on at least one occasion and as a result were given an essay to write on the importance of respecting timings. Although both brothers denied in their testimony that they were ever late, this is evidence that the timings, including the comings and goings of recruits were closely monitored.

It would also follow that corrective action, would necessarily inquire into their circumstances of being late and how to improve their attention to timings. [ 111 ] Further, on the specific morning in question, I have accepted the evidence of then-Private U. Turemis that when Corporal Reid approached him that morning saying “let’s go” that he had to have a shower, that then-Private U.

Turemis’s resistance and suggestion that he would do it at home, would have clarified any ambiguity that might have existed for Corporal Reid that he was not comfortable going into the showers. [ 112 ] In light of all the above facts, despite having his own very limited experience in supervising, I can still draw the inference that Corporal Reid had to have known that the Turemis brothers showered at home and were not comfortable showering in the communal

showers. [ 113 ] Consequently, I find that Corporal Reid was acutely aware of the sensitivity of then-Private U. Turemis regarding showering in the communal area and yet he specifically ordered him to shower in the communal showers. The aggravating factor that raises this to a higher level is that he specifically aggravated the discomfort of then-Private U. Turemis by constantly staring or observing him. Since this level of observation was not necessary to providing guidance on the forming of the beret, but it was also assessed as “non” sexual, I find that it was done simply to be mean to then-Private U.

Turemis given his known sensitivity. In doing what he did, Corporal Reid intentionally demeaned then-Private U.

Turemis and that falls within the scope of the ill-treatment of a subordinate. [ 114 ] I find that with the particularized conduct proven beyond a reasonable doubt and based on the facts of this case, the evidence rises to the level required to constitute ill-treatment of a subordinate. [ 115 ] Once the particulars are proven and it has been determined that the conduct rises to the level of ill-treatment, the Court must then assess whether the accused had the requisite intent. [ 116 ] In proving whether Corporal Reid had the requisite intent, the prosecution must establish that the accused intended to engage in the conduct particularized in the charge in this case, ordering then-Private U.

Turemis to take a shower and then watching him without justification. In short, Corporal Reid must have intended the prohibited act which constitutes the ill-treatment of then-Private U. Turemis. This is established by resorting to inferences drawn from all of the circumstances so that the judge can be convinced beyond a reasonable doubt that the accused must have intended to engage in the prohibited conduct. Based on the facts of this case, I have no problem concluding that Corporal Reid intended the consequences of his actions with respect to the particulars.

Charges 3 and 4 - conduct to the prejudice of good order and discipline [ 117 ] The remaining charges are for allegations pursuant to

section 129 of the NDA . Third charge [ 118 ] The third charge alleges that Corporal Reid inappropriately ordered then-Private O. Turemis to shower with him. [ 119 ] Then-Private U. Turemis’s evidence was that the incident regarding his brother happened the same day after he returned to the car. He explained that when he first told his brother, he laughed and then later became angry. He explained that shortly thereafter, when he was seated in the passenger seat, with his brother in the driver’s seat, Corporal Reid approached the car and said, “let’s go we are going to take a shower together”.

He testified that his brother strongly rejected Corporal Reid’s suggestion who became shocked and left. [ 120 ] Then-Private O. Turemis’s evidence with respect to this charge was as follows: (

a) he did not learn of the specific details of what happened with his brother until that night after it occurred; (

b) when he arrived for PT the next day, he felt that he would be the target of similar treatment as his brother had received so he knew what to expect; (

c) he described that the next day, the same thing happened to him. Corporal Reid came and waited in the middle of the double doors while they were doing PT; (

d) he stated that to avoid the situation, he sneaked out the back door and went to the car but Corporal Reid approached him while he was seated in the car and said, “ let’s go” to which he responded in a rude way;

(

e) he said he knew what would happen suggesting that Corporal Reid would also watch him take a shower naked; (

f) he spoke rudely to Corporal Reid by telling him to leave, and then Private O. Turemis left; (

g) he explained that his brother and Corporal Reid were both witnesses; (

h) when asked why he did not abide by the direction, he said that he was not going to take a shower for anyone to watch him; (

i) he said he knew what he meant by “let’s go” because of what had happened to his brother and he guessed the same thing would happen to him so he was prepared; (

j) he did not show Corporal Reid his beret that day nor did Corporal Reid ask to see his beret before he told him to go shower; and (

k) when he was instructed to go shower, he said he was angry because of what had happened to his brother and they were just learning the culture and were afraid of being charged as they were both in university so he was trying to avoid any trouble. [ 121 ] There were significant inconsistencies in the above evidence: (

a) the two brothers gave different evidence as to when the incident regarding then-Private O. Turemis, the older brother unfolded: i. the younger brother, then-Private U. Turemis, testified and described that Corporal Reid approached his brother immediately afterwards; and ii. the older brother, then-Private O. Turemis, confirmed that Corporal Reid approached him after then-Private U. Turemis returned to the car, and said “let’s go” but that he said no, and that he approached him again the next morning after PT and he replied with a very strong “no”. (

b) it is not clear on the evidence whether there was an actual order issued, as the term “let’s go” can be used in various ways and is not necessarily an imperative or order; (

c) the evidence suggests that as fearful as then-Private O. Turemis was of getting charged, he also not only disobeyed but also responded in what could be termed an insubordinate manner; and (

d) there is no evidence to support the words “to shower with him” or what was intended by them. [ 122 ] There was no other independent evidence to support the allegation other than that given by the two brothers, which I found was inconsistent and inconclusive. [ 123 ] Although, Corporal Reid pleaded not guilty to the charge before the Court and he did take the stand, neither defence nor the prosecution made inquiries of him regarding this third charge.

[ 124 ] Based on the inconsistency in the evidence, and the lack of clarity, I do not find that the prosecution has proven the particulars of the third charge beyond a reasonable doubt. Fourth charge [ 125 ] The fourth charge alleges that in the presence of subordinates, Corporal Reid stated that, “Indigenous persons are weaker than the rest of the population.

They are like the black people of America and need special treatment”, or words to that effect. [ 126 ] In his testimony, although Corporal Reid did admit to drawing a comparison between the Bold Eagle program and the Basic Military Qualification (BMQ), he adamantly denied making the statement set out in the particulars or saying any words to that effect. [ 127 ] The whole of evidence suggested that the Bold Eagle program is an established military training program for Indigenous persons over the age of sixteen who might be interested in a military career.

It helps candidates understand the need for self-discipline and teamwork while instilling pride and educating them on the Indigenous tradition of military service. Successful completion of the program earns the candidate a reserve BMQ. At the end of the course, the candidates can continue serving with the primary reserve. It provides candidates with the opportunity to experience a taste of Army life for six weeks, without the obligation to commit to a longer term of military service.

Then-Corporal Goodrunning was a proud graduate of the program and upon completion of the Bold Eagle program, she received her BMQ qualification and chose to serve within the primary reserve. At the time of the incidents before the court, she was serving at 41 Service Battalion and was also participating in the FTSE program. [ 128 ] Then-Private U. Turemis’s evidence regarding the fourth charge was as follows: (

a) then-Corporal Goodrunning was describing the BMQ that she had done under the Bold Eagle program and they thought it was pretty cool; (

b) they were teasing her and trying to get her to smile; (

c) all of a sudden, Corporal Reid started to bash the Bold Eagle program and that it was a filibuster to get more Indigenous people to join the reserves and the group watched the disposition of then-Corporal Goodrunning go from smiling to upset; and (

d) he originally could not remember the words that were used, but he described the tone of Corporal Reid’s remarks as critical of the program; [ 129 ] After his memory was refreshed, the testimony of then-Private U. Turemis that relates to this charge was as follows: “Q. Was the statement helpful in refreshing your memory? A. It was. Q. Okay. Going back to the conversation between you, your brother, Private Goodrunning and Corporal Reid, please describe the words said by Corporal Reid? A When, you know, we were teasing Goodrunning like, you know, I wish we could get into that too.

You know, it seems like an awesome, fun environment. And then Corporal Reid turns then, oh, even if you could, I will make sure to not let you. Like what? He’s like, you know . . .. The Bold Eagle it was called, is designed for Indian people to, you know, make them like—make them feel special. You know. They’re like the African people. Like they’re—he was trying to—like create a connection between Indian people and African people showing that they are weaker than us, this and that. It’s just a place, you know like—it’s the government ways of getting the Indian people into the reserves as well.

He’s just making these all kinds of weird comparisons. And I remember watching this girl’s face go from a smile to, just a depressed, sad smile. And afterwards, both me and my brother, I believe it was outside at the end of the day, we used to take her with our car sometimes drive her to her bus—bus stop. It was a bit far away. So she can get on the bus and go home. I remember apologizing to this girl. I was like, it just did not feel right at that time. Like you just felt horrible.” [ 130 ] The evidence of then-Private O. Turemis was as follows:

(

a) he worked in the orderly room with his brother, then-Private U. Turemis, and then-Corporal Goodrunning and Corporal Reid; (

b) he described that they were discussing the Bold Eagle program and in referencing the program, Corporal Reid said that Indian people are like the Black people of Canada and we have to take care of them, they have less DNA and we have to look after them. This is one of the reasons the government set up a program so they qualify; (

c) he described how then-Corporal Goodrunning’s face turned red and went silent then Corporal Reid said to her “by the way, no offence”, but it was clear that then-Corporal Goodrunning was not happy about it and the dynamics changed; and (

d) he described then-Corporal Goodrunning as a quiet, shy and introverted member. [ 131 ] Then-Corporal Goodrunning testified as follows: (

a) she joined the Bold Eagle program in 2017 and then transferred to the primary reserves in 2018; (

b) she really enjoyed the Bold Eagle program so she decided she would join the reserves; (

c) she was participating in the FTSE program in the summer of 2019 and working in the orderly room with Corporal Reid and the two other complainants; (

d) she does not recall hearing him make any other racialized comments; (

e) when asked if there was ever a discussions or comments made in relation to the Bold Eagle program, she explained that: i. Corporal Reid often referred to the Bold Eagle program as a summer camp for natives; ii. the comments embarrassed her and made her ashamed. She did not say anything because she did not want to make a big scene; iii. Corporal Reid did make jokes about the Bold Eagle program but she did not feel that he meant it maliciously, but rather was joking; iv. Corporal Reid could be edgy; v.

Corporal Reid made one comment about residential schools which she suggested was unacceptable, but she also confirmed that he immediately apologized afterwards; and vi. she was very proud of the Bold Eagle program and would not say anything negative about it; (

f) he made comments that only women and privates complain or make complaints;

(

g) under cross-examination, she was asked to provide more specifics regarding what was said and she was clear that the comments he made were not about her heritage but were more critical of the Bold Eagle program; [ 132 ] In his testimony, Corporal Reid adamantly denied making the above comments, but admitted that he did make derogatory comments on the Bold Eagle program. He testified as follows: (

a) the conversation in question started when the Turemis brothers were asking then-Corporal Goodrunning about her experiences on course and how she found the BMQ Land; a follow up course to BMQ to which she explained that she enjoyed it but she found it tough; (

b) he told the Court that he weighed in because he did not think the unit helped then-Corporal Goodrunning to prepare for it; (

c) his significant other also attended the Bold Eagle program; (

d) he admitted that some of his comments regarding the Bold Eagle program could be taken as disparaging; and (

e) he admitted to having referred to the Bold Eagle program as a summer camp. [ 133 ] From the evidence, it was clear that what happened during the conversation in the orderly room had a memorable impact on the Turemis brothers. Although they were not particularly clear on exactly what was said, they both referenced the fact that Corporal Reid made comparisons between Indigenous persons and African Americans.

The outrage that was articulated by the brothers with respect to the comments appeared genuine and it was clear that they felt the comments were offensive, having observed their negative effect upon then-Corporal Goodrunning. Then-Private U. Turemis advised the Court that in light of what happened, they personal

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