R. v. Williams, 2017 CM 4016

COURT MARTIAL Citation: R. v. Williams , 2017 CM 4016 Date: 20171128 Docket : 201654 Standing Court Martial Canadian Forces Station St. John’s St. John’s, Newfoundland and Labrador, Canada Between: Her Majesty the Queen, Respondent - and - Sergeant M.B. Williams, Applicant Before: Commander J.B.M. Pelletier, M.J. DECISION ON A MOTION BY DEFENCE THAT NO PRIMA FACIE CASE HAS BEEN MADE OUT ON THE THIRD CHARGE FOR CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE (Orally) Introduction [ 1 ] In this trial, Sergeant Williams is facing three charges. The first two charges of ill-treatment of a subordinate contrary to

section 95 of the National Defence Act ( NDA ) arise out of one incident where it is alleged that he ordered two subordinates to consume water until they vomited. The third charge alleges that Sergeant Williams did harass a third subordinate, thereby committing the offence of conduct to the prejudice of good order and discipline contrary to

section 129 of the NDA . [ 2 ] At the close of the prosecution's case, and pursuant to the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) paragraph 112.05(13), the defense presented a non-prima facie motion with regard to the third charge under

section 129 of the NDA contending that the prosecution has failed to introduce any evidence concerning one essential element of the offence, namely the prejudice to good order and discipline arising out of the conduct described in the evidence heard thus far from prosecution witnesses. Specifically, the defence argues that proof of prejudice to good order and discipline in this case necessarily requires that the prosecution present evidence of a standard of conduct applicable to the accused at the time of the offence and evidence of actual or implied knowledge of that standard by the accused.

The defence submits that although the prosecution produced as Exhibit 3 the Defence Administrative Orders and Directives (DAOD) 5012-0, Harassment Prevention and Resolution that was in force at the time of the alleged offence, it has failed to produce any evidence of the actual or deemed knowledge by Sergeant Williams of the order found at

DAOD 5012-0. [3] In reply, the prosecution submits that the particulars of the third charge do not mention a contravention of DAOD 5012-0 asthe sole source allowing to conclude that the conduct proven is conduct to the prejudice of good order and discipline. Referring the courtto the recent decision of the Court Martial Appeal Court (CMAC) in R. v. Golzari, CMAC-587 of 23 June 2017, the prosecution assertsthat there is ample evidence on record to allow the court to infer prejudice to good order and discipline resulting from the proven conductof the accused in this case. The applicable law [4] Note (

B) to QR&O

article 112.05 provides: (

B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essentialingredient such that the accused could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neitherthe credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has beenestablished.

The doctrine of reasonable doubt does not apply in respect of a prima facie case determination. [5] The note substantially captures the rule that applies with respect to directed verdicts of not guilty at the close of the evidencefor the prosecution, as accepted by the Supreme Court of Canada. For instance, the test to be applied was mentioned by Fish J., whodelivered the decision for the Supreme Court in R. v. Fontaine, 2004 SCC 27 at paragraph 53 and more recently in R. v.

Barros, 2011SCC 51, at paragraph 48 by Binnie J.: A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by aproperly charged jury acting reasonably, would justify a conviction: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, atparas. 1-4; R. v. Bigras, (Ont. C.A.), at paras. 10-17.

Whether or not the test is met on the facts is a question of lawwhich does not command appellate deference to the trial judge.... [6] Indeed, a non prima facie motion at the close of the prosecution's case is different from a request for an acquittal based onreasonable doubt. The latter is based on the premise that there may be some evidence upon which a jury, properly instructed, mightconvict, but that this evidence is insufficient to establish guilt beyond a reasonable doubt.

Since the concept of reasonable doubt is notcalled into play until all the evidence is in, reasonable doubt cannot be considered unless the accused has either elected not to callevidence or has completed the presentation of his evidence. [7] The court may not take into account the quality of the evidence in determining whether there is some evidence offered bythe prosecution on each essential element of each charge so that a properly instructed jury could reasonably decide on the issue: not"would" or "should", but simply "could". [8] The burden of proof rests on the accused to demonstrate, on a balance of probabilities, that this test is met.

Issue [9] In light and in the context of the arguments of the parties, what the court needs to do is to measure the impact of the Golzaridecision as to what exactly needs to be proven by the prosecution and determine whether there is evidence on record, upon which aproperly instructed panel could rationally conclude that the accused is guilty beyond a reasonable doubt of charge 3, on the essentialelement of the prejudice to good order and discipline. Analysis [10] I acknowledge the reference made by the applicant to the case R. v. Donohue, 2015 CM 4006, where I granted a non-prima

facie application with respect to six charges laid under

section 129 of the NDA on the basis that no evidence was adduced to prove that, atthe time of the commission of the alleged offences, the accused had the requisite knowledge of the standard of conduct required to proveprejudice to good order and discipline, an essential element of the offences under

section 129 of the NDA for which he was charged. Inote that the publications and notifications requirements were simplified post-Donohue but I find that these new requirements in force on1 August 2015, which is during the period of time particularized in the charge, do not apply to my analysis of this application. TheDonohue precedent cannot be applied to this case for two reasons: (

a) first, the six charges in Donohue alleged that the accused did harass a number of named persons by committing certain actscontrary to DAOD 5012-0, Harassment Prevention and Resolution. In this case, there is no mention of DAOD 5012-0 in the particulars ofthe charge; (

b) second, the law has changed with Golzari, especially as it pertains to the proof of a standard of conduct. Indeed, the essentialelement of whether the neglect or conduct particularized in the charge is to the prejudice of good order and discipline was redefined toevacuate the previously adopted view that there were three things to be proven: a standard, knowledge of that standard and a conductwhich breached that standard. In granting the appeal in Golzari, the CMAC reversed the trial judge’s decision to require proof of astandard.

If the proof of the standard is no longer required, it flows that proof that the accused was aware of that standard, as part of theprejudice to good order and discipline element of the offence under

section 129, cannot be demanded. [11] Indeed, Golzari stands for the proposition that prejudice will be proven, beyond a reasonable doubt, so long as the totality ofthe circumstances supports the finding that the conduct in question would tend to or be likely to result in prejudice to good order anddiscipline (see paragraph 77). The notion of prejudice is distinguished from a physical manifestation of injury to good order anddiscipline (see paragraph 76).

Furthermore, at paragraph 79, the CMAC stated that in most instances, the trier of fact in a Court Martialshould be able to determine whether the proven conduct is prejudicial to good order and discipline based on their experience and generalservice knowledge. [12] The prosecution submits that numerous witnesses testified as to what they perceived as a consequence of the alleged conductof the accused in relation to Private Renouf, identified in the particulars of charge 3.

It is argued that this evidence is of a type that mayallow an inference that the alleged conduct would likely result in prejudice to good order and discipline. I agree with that assessment. [13] The concern expressed by the defence appears to relate to the applicable norm of conduct to be applied, so that a properdefence can be advanced, in light of paragraph 79 of Golzari to the effect that the trier of fact should be able to determine whether theproven conduct is prejudicial to good order and discipline based on their experience and general service knowledge. I am alive to thatconcern.

A trier of fact should be wary of deciding the issue of the existence of a prejudice to good order and discipline on the basis oftheir own subjective assessment. Indeed, crimes should be defined in a way that affords citizens a clear idea of what acts are prohibited.(see Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123, per Lamer J.) Wegenerally convict and sometimes imprison people only where it is established beyond a reasonable doubt that they have violatedobjectively defined norms. [14] In this case however the service knowledge in the field of harassment is educated by the production of Exhibit 3, whichincludes the version of DAOD 5012-0 in force at the time of the alleged offence. There is evidence on record that could allow a trier offact to conclude that a breach of the “non-harassment” standard defined in DAOD 5012-0 has occurred.

It would then be possible to inferprejudice to good order and discipline, as stated not only in Golzari but also by Parliament at section 129(2) of the NDA. In doing so, theoverall analysis becomes in practice similar to what has been applied prior to Golzari. [15] This is in line with the CMAC decision of R. v. Latouche, CMAC-431 (2 August 2000), incidentally quoted in Golzari, whichis also particularly helpful as to the mens rea required in this case. In that decision, the Court held that

section 129 of the NDA does notrequire the prosecution to prove that an accused had any intent whatsoever to engage in conduct to the prejudice of good order anddiscipline. It is the underlying violation that is relevant to determine what mens rea is required for a finding of guilt pursuant to section129. Conclusion [16] The defence has not demonstrated on a balance of probabilities that no evidence was adduced to prove the essential element ofprejudice to good order and discipline on the third charge, laid under s. 129 of the NDA for conduct to the prejudice of good order anddiscipline. Therefore, this Court finds that a prima facie case has been made out on that charge.

FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES the application. Counsel: The Director of Military Prosecutions as represented by Major G.J. Moorehead and Captain B.E. Jalonen Major J.L.P.L. Boutin, Defence Counsel Services, Counsel for Sergeant M.B. Williams