R. v. Cogswell, 2021 CM 2017

COURT MARTIAL Citation: R. v. Cogswell, 2021 CM 2017 Date: 20210818 Docket: 201935 Standing Court Martial 5th Canadian Division Support Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen -and- Bombardier C.H. Cogswell, Accused Before: Commander S.M. Sukstorf, M.J.

REASONS FOR FINDING (Orally) The case [ 1 ] The allegations before the court relate to an alleged incident that occurred on 21 July 2018, involving members of W (Whiskey) Battery, Royal Canadian Artillery School (RCAS), who were scheduled to conduct a live fire portion of Exercise COMMON GUNNER at 5 Canadian Division Support Brigade’s (CDSB) training area at Canadian Forces Base (CFB) Gagetown, New Brunswick.

The exercise ran for two and a half weeks. [ 2 ] Bombardier Cogswell, known as Bombardier Fraser at the time of the alleged incident, baked a dozen cupcakes that she distributed while working at the on-site mobile canteen. The prosecution withdrew eight charges before the start of the court martial. The remaining charges read as follows:

“ FIRST CHARGE

Section 93 of the National Defence Act (Alternate to the Second Charge) BEHAVED IN A DISGRACEFUL MANNER Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did distribute cupcakes containing cannabis to Canadian Forces personnel during a domestic live fire exercise. SECOND CHARGE

Section 129 of the National Defence Act (Alternate to the First Charge)

AN ACT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE DURING MILITARY TRAINING Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did distribute cupcakes containing cannabis to Canadian Forces Personnel during a domestic live fire exercise. THIRD CHARGE

Section 130 of the National Defence Act (Alternate to the Fourth charge) [Fourth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Dylan Eoll to use cannabis with intent to aggrieve or annoy. FIFTH CHARGE

Section 130 of the National Defence Act (Alternate to the Sixth charge) [Sixth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Connor Chubry to use cannabis with intent thereby to aggrieve or annoy.

SEVENTH CHARGE

Section 130 of the National Defence Act (Alternate to the Eighth charge) [Eighth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Lyann Lechman to use cannabis with intent thereby to aggrieve or annoy. NINTH CHARGE

Section 130 of the National Defence Act ( Alternate to the Tenth charge) [Tenth charge withdrawn 4 August 2021 AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Jordan Slade to use cannabis with intent thereby to aggrieve or annoy. ELEVENTH CHARGE

Section 130 of the National Defence Act (Alternate to the Twelfth charge) [Twelfth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Liam Jarbeau to use cannabis with intent thereby to aggrieve or annoy. THIRTEENTH CHARGE

Section 130 of the National Defence Act (Alternate to the Fourteenth charge) [Fourteenth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars: In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause William Vallerand to use cannabis with intent thereby to aggrieve or annoy.

FIFTEENTH CHARGE

Section 130 of the National Defence Act (Alternate to the Sixteenth charge) [Sixteenth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause William Long to use cannabis with intent thereby to aggrieve or annoy. SEVENTEENTH CHARGE

Section 130 of the National Defence Act (Alternate to the Eighteenth charge) [Eighteenth charge withdrawn 4 August 2021] AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY ADMINISTERING A NOXIOUS THING, CONTRARY TO SECTION 245(1)(

B) OF THE CRIMINAL CODE Particulars : In that she, on or about 21 July 2018, in the training area at 5 CDSB Gagetown, New Brunswick, did cause Nathan Penner to use cannabis with intent thereby to aggrieve or annoy.” [ 3 ] 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.

Background and basic facts [ 4 ] Exercise (EX) COMMON GUNNER was the first exercise of its type that unfolded at RCAS where all the artillery functions or subunits came together to conduct combined individual training within a larger construct. It was described as having many moving parts with multiple courses, with approximately 100 students who needed to confirm their training. It was estimated that there were as many as 150 personnel who participated in the exercise.

The summer time period was particularly busy at the RCAS as not only did they have multiple courses in-house where the training of the students culminated in the major live-fire exercise ongoing, but they were also in the middle of the posting season. Despite the incident being reported and a “Check fire” command (stoppage in firing the guns) was ordered for the gun line, the rest of EX COMMON GUNNER continued as there were training requirements that needed to be fulfilled, with different activities unfolding concurrently. [ 5 ] W Battery provides support to the RCAS, its instructors and students.

RCAS tasked W Battery to run supplies out to the members during the exercise. [ 6 ] Then-Major Cutting, Battery Commander (BC) commanded W Battery and the Battery Sergeant Major (BSM) was then- Master Warrant Officer Ladouceur who served as the most senior non-commissioned member within the battery. The battery is then broken down into troops that are each led by a Gun Position Officer (GPO). The GPO is responsible for the overall conduct of the gun position and the GPO is supported by a sergeant major, which is referred to as a Troop Sergeant Major (TSM).

Lieutenant McCarthy was the GPO on that day and both Warrant Officers Mangrove and Sampson were referred to by the witnesses as the TSMs. Under the troop, there were three different detachments of which two are implicated in the facts before the Court. One of the detachments was led by then-Master Bombardier Vallerand and the second detachment was led by then-Master Bombardier Diggs.

They are referred to as Number 1s or Detachment Commanders. [ 7 ] Bombardier Cogswell was assigned to W Battery and was responsible for manning and supporting a mobile canteen that provided snacks and supplies to the soldiers while in the field. The canteen moved around the training area to different locations to support the various activities. On 21 July 2018, Gunner McLandress was also working in the canteen with Bombardier Cogswell.

[ 8 ] On the morning in question, then-Master Bombardier Diggs’ detachment was already on the gun line at Airstrip 1 and had just finished recording their gun when the mobile canteen truck arrived at approximately 1030 to 1100 hours. Mr. (then-Master Bombardier) Diggs explained that they had a break in their

schedule so he told his detachment to go to the canteen. From his detachment, two members, then-Bombardier Lechman and then-Gunner Eoll attended the canteen and each consumed a cupcake. Then- Bombardier Lechman brought a cupcake back from the canteen for then-Bombardier Chubry. All three of them displayed mind-altering symptoms consistent with the ingestion of cannabis.

Then-Master Bombardier Diggs also consumed a cupcake, but aside from having a dry pasty mouth, he did not exhibit any mind-altering symptoms. [ 9 ] Most witnesses described the cupcakes as chocolate, approximately two inches by two inches in size, with chocolate icing and a jelly bean on top. There was a wrapper at the bottom of each cupcake, holding it together. [ 10 ] The evidence suggests that the canteen then moved to a different location where Master Bombardier Vallerand’s detachment was in position.

The testimony before the Court suggested that his detachment was located approximately thirty minutes away from Airstrip 1. [ 11 ] At that location, then-Master Bombardier Vallerand, then-Gunners Jarbeau and Long, as well as then-Bombardier Slade attended the canteen and consumed cupcakes. Then-Gunner Penner also attended at the canteen, but did not take a cupcake. After their visit to the canteen, the members of then-Master Bombardier Vallerand’s detachment returned to the truck to do random work.

Approximately, fifteen minutes later, then-Gunner Penner ate the remaining piece of the cupcake that then-Gunner Jarbeau did not finish that was left in the cab of the truck. [ 12 ] Master Bombardier Vallerand’s detachment then packed up from their position, got into their truck and started to move to Airstrip 1, where the gun line was located. Then-Gunner Long was driving the truck and while enroute, he started to feel mind-altering symptoms and almost had an accident with the vehicle in front of them.

Similarly, then-Master Bombardier Vallerand, then-Gunners Jarbeau and Penner experienced similar symptoms that only manifested themselves during the drive to Airstrip 1. Then-Bombardier Slade slept in the back of the vehicle during the drive between the two locations and upon waking up, he felt very foggy, lethargic, incoherent and slow. [ 13 ] After the two detachments were amalgamated together at the gun line, they began comparing their symptoms and eventually came to the conclusion that they were all feeling “weird” and that their symptoms were similar.

Some of the members who were familiar with the symptoms of cannabis began to suspect that they were high. After further discussions, they identified the source of their symptoms to be the cupcakes. [ 14 ] The Commandant of RCAS contacted the military police (MP), through then-Captain Kaempffer, to investigate the incident. Corporal Benjamin Whitehall, a MP, attended the bivouac and began a MP investigation. [ 15 ] Corporal Whitehall received a single cupcake wrapper in a Ziploc bag from then-Captain Kaempffer, which he sent for testing by Health Canada.

The MP shipped the sealed wrapper on 12 September 2018, by way of Express Post and it arrived on 14 September 2018 at the Health Canada Laboratory in Longueil, Quebec. Testing by Health Canada revealed the presence of tetrahydrocannabinol (THC) on the wrapper. In an Agreed Statement of Fact, the Certificate of the Analyst, dated 4 October, 2018, signed by Vincent Levasseur was admitted into evidence. [ 16 ] Captain Kaempffer collected five samples of urine pursuant to the Canadian Forces Drug Control Program from five different members involved in the incident who voluntarily submitted to the drug testing.

He sent the samples to a Dynacare Laboratory in London, Ontario by way of Purolator. Three members did not provide a urine sample, being then-Gunners Jarbeau and Penner and then- Bombardier Slade. [ 17 ] On 31 July 2018, all five urine samples collected from the affected individuals tested positive for marihuana metabolite as certified by an analyst named Amber Rose. The test measures the nanograms (ng) of a toxic substance in millilitres (ml) of blood.

The toxicology results of the urine analysis for marihuana metabolite are as follows: DE1037539 (Gunner Lechman) = 68 ng/ml; DE1081064 (Gunner Eoll) = 25 ng/ml; DE1081065 (Gunner Chubry) = 65 ng/ml; DE1081066 (Master Bombardier Long) = 16 ng/ml; DE1081067 (Master Bombardier Vallerand) = 16 ng/ml.

[18] The fact that marihuana metabolite was detected in their urine means the members who provided the samples consumedmarihuana within twenty-eight days prior to the date the sample was provided. Evidence [19] In addition to all the substantial documentary evidence filed in Court, the prosecution called sixteen witnesses. The accuseddid not testify. However, on consent the prosecution and defence agreed that the two interviews Bombardier Cogswell participated inwith a military police investigator, Sergeant LeBlanc, were voluntary, properly cautioned, and admissible at trial without the need for avoir dire.

Presumption of innocence [20] That 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. [21] 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. [22] In essence, this means that even if I believe that Bombardier Cogswell is probably guilty or likely guilty, that is not sufficient.If the prosecution fails to satisfy me of her guilt beyond a reasonable doubt, I must give her the benefit of the doubt and acquit her. [23] 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 Bombardier Cogswell guilty of the charges before the Court,the onus is on the prosecution to prove something less than an absolute certainty, but more than probable guilt for the charges set out inthe charge sheet (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, paragraph 242). [24] The evidence in this case is circumstantial.

In other words, nobody saw Bombardier Cogswell put cannabis in the cupcakes.Circumstantial evidence, “is any fact from the existence of which the trier of fact may infer the existence of a fact in issue” (see R. v.Arcuri, 2001 SCC 54, paragraph 23). [25] The application of this standard of proof can be challenging in cases that are reliant on circumstantial evidence. Unlike directevidence, which, if believed resolves the matter in issue, circumstantial evidence requires inferences to be drawn from the evidence as awhole (see R. v. Cinous, 2002 SCC 29 at paragraph 88).

The accused should not be convicted unless those inferences leave no reasonabledoubt about the guilt of the accused. [26] What this means is that circumstantial evidence cannot prove something beyond a reasonable doubt if that evidence supportsanother reasonable inference other than that of guilt. [27] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada (SCC) clarified the law of circumstantial evidence.

The SCCconcluded that “inferences consistent with innocence do not have to arise from proven facts”, but can arise from an absence of evidencewhich is what the defence asserts is the case here (see Villaroman at paragraph 35). Requiring otherwise would place a burden onBombardier Cogswell to prove facts supporting her innocence, and ignore the rule that a reasonable doubt must be based on aconsideration of all of the evidence. [28] While I must consider all plausible theories or reasonable possibilities that are inconsistent with guilt, the prosecution does not

need to negate irrational or fanciful conjectures that may be consistent with innocence (see Villaroman at paragraph 37 ). These theories or possibilities must be based on logic and experience applied to the evidence, not on speculation. The law

Section 93 of the NDA – disgraceful conduct [ 29 ]

Section 93 of the National Defence Act ( 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 term not exceeding five years or to less punishment. [ 30 ] In order to prove a charge of disgraceful conduct, the prosecution is required to prove a number of elements of the offence. Based on the unrefuted evidence before the Court, the Court has no problem concluding that the elements of time and 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) that it was the accused who engaged in the conduct set out in the particulars; (

c) the alleged conduct constituted disgraceful conduct; and (

d) that the accused had the wrongful intent.

Section 129 of the NDA – conduct to the prejudice of good order and discipline [ 31 ] The second charge before the Court alleges that in the alternative to the first charge 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 time and place have been met. [ 32 ] Similar to the required proof in the first charge, the prosecution must prove beyond a reasonable doubt the conduct as alleged and that the accused was the person who put the cannabis into the cupcakes. [ 33 ] 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. [ 34 ] In an Agreed Statement of Fact, both the prosecution and defence agreed that in July of 2018, the following general penal prohibitions existed for members of the Canadian Armed Forces (CAF) in reference to cannabis: (

a) it was illegal to possess cannabis without a medical prescription; (

b) it was prohibited for members to use cannabis without a medical prescription; and (

c) it was illegal to distribute, give or administer cannabis to CAF members.

Section 130 of the NDA – administering a noxious thing, contrary to paragraph 245(1) (

b) of the Criminal Code [ 35 ] Charges 3, 5, 7, 9, 11, 13, 15 and 17 are for offences punishable under

section 130 of the NDA , that is to say, administering a noxious thing, contrary to paragraph 245(1) (

b) of the Criminal Code which reads as follows; Administering noxious thing 245

(1) Every person who administers or causes to be administered to any other person or causes any other person to take poison or any other destructive or noxious thing is guilty [. . .] (

b) of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on

summary conviction, if they did so with intent to aggrieve or annoy that person. [ 36 ] Aside from identity, time and place, the proof required for the Criminal Code offence of administering a noxious thing first requires an analysis of whether or not cannabis is a noxious thing. Secondly, whether one administers a noxious thing when adding it into cupcakes to be distributed and finally that the accused put cannabis into the cupcakes with the intention to aggrieve or annoy the persons consuming them.

Analysis [ 37 ] 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 [ 38 ] Given that the event in question took place well over three years ago, it is not unusual that the evidence presented before the Court is contradictory.

Witnesses may have different recollections of the events and the Court has to determine what evidence it finds credible and reliable. [ 39 ] With respect to the charges, the main prosecution witnesses who were complainants were then-Gunners Chubry, Eoll, Penner, Jarbeau and Long, then-Bombardiers Lechman and Slade as well as then-Master Bombardier Vallerand. It was noted that at the time of the events, they were all intoxicated by cannabis to varying levels.

Intoxication in the context of this case was a consideration in the Court’s assessment of the reliability of some of the evidence and the Court needed to assess the evidence from all the witnesses in order to make a determination of what evidence as a whole should be believed. Fortunately, there was testimony from a number of members such as then-Master Bombardier Diggs and Warrant Officer, (then Sergeant) Sampson who witnessed the unfolding of the events and whose testimony provided helpful guidance in deciding what evidence to believe.

[40] A court may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings. [41] Many factors influence the Court’s assessment of the credibility of the testimony of a witness. For example, a court will assessa witness’s opportunity to observe events, as well as a witness’s reasons to remember. Was there something specific that helped thewitness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking or relativelyunimportant 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 witnessimpartial? [42] The viva voce evidence, which is the live testimony before the Court, consisted of sixteen witnesses led by the prosecution. [43] The accused did not testify. It is important to emphasize that because the burden is on the prosecution, Bombardier Cogswellhas an absolute right to remain silent at her trial.

The fact that Bombardier Cogswell did not testify at this trial cannot be taken intoaccount when I decide whether or not the prosecution has proven its case. If, after considering the whole of the evidence, I am notsatisfied that the charges against Bombardier Cogswell have been proven beyond a reasonable doubt, I cannot look to her silence toremove that doubt and find she is guilty. [44] As mentioned earlier, on 20 September 2018 and 10 October 2018, Bombardier Cogswell participated in interviews withSergeant LeBlanc that were both audio and video recorded.

As a general rule, the statements of an accused person made outside courtsuch as the two interviews with Sergeant LeBlanc, a person in authority, if deemed to be voluntary, are receivable in evidence against her(see R. v. Simpson, (SCC), [1988] 1 SCR 3, paragraph 24). Consequently, these two interviews are admissible at trialand provide her perspective on the charges before the Court. [45] As the Court needs to address the allegations with respect to multiple complainants, the Court will provide its comments onthe credibility and reliability of witnesses when addressing the individual charges.

W.(D.) analysis on the critical questions [46] With respect to the three different offences before the Court, proof of the charges rely upon the same underlying facts. Inshort, the Crown must prove beyond a reasonable doubt that: (

a) the complainants consumed cannabis on that day; (

b) the cupcakes were the source of cannabis consumed by the complainants; (

c) Bombardier Cogswell put the cannabis in the cupcakes; (

d) she distributed or administered the cupcakes to the complainants knowing that the cannabis was in them; and (

e) with respect to those offences contrary to paragraph 245(1)(

b) of the Criminal Code: i. cannabis is a noxious thing; ii. the distribution of the cupcakes meets the definition of administering; and

iii. in distributing the cupcakes, Bombardier Cogswell intended to aggrieve or annoy thecomplainants, who were soldiers conducting a live-fire exercise. [47] The defence challenged the credibility and reliability of the complainants and raised alternate theories in cross-examination.Firstly, he suggested that there is no evidence that there was cannabis in the cupcakes as the symptoms displayed by the individuals whoconsumed them are not consistent with the consumption of cannabis. [48] Secondly, he argued that if the Court finds that there was cannabis in the cupcakes, he asserts that someone else could haveadded the cannabis.

His arguments are proffered to raise doubts as to the link between Bombardier Cogswell and the symptoms thesoldiers experienced, the presence of THC on the cupcake wrapper, and the five urine samples that tested positive for marihuanametabolite as certified by Amber Rose. [49] The credibility of the accused, the complainants, and the reliability of the expert opinion provided by Constable Watson, areall central to the fact-finding task in this case.

Assessing conflicting versions [50] In this case, Bombardier Cogswell did not testify in court, but the evidence included Bombardier Cogswell’s two interviewsconducted by Sergeant LeBlanc.

In both interviews, Bombardier Cogswell emphatically denied putting cannabis in the cupcakes shedistributed. [51] Conversely, the testimony of the prosecution’s witnesses suggest that the cupcakes baked by and distributed personally byBombardier Cogswell were the source of the cannabis they ingested. [52] In assessing a case with competing versions of what happened, where credibility is a central issue and the accused hastestified, the SCC has provided guidance to trial judges in R. v.

W.(D.), (SCC), [1991] 1 SCR 742 commonly referred toas the W.(D.) test. [53] 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). [54] 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 doubtby it, I must acquit; and (

c) third, even if I am not left in doubt by the exculpatory account advanced by the defence, I must ask myselfwhether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of theaccused. [55] Further, in Regina v. C.W.H., (BC CA), 7 WAC 205, [1991] BCWLD 2371, 68 CCC (3d) 146, 3 BCAC205, 14 WCB (2d) 89, [1991] BCJ No 2753 (QL)”.Wood J.A. suggested an addition to the second part of the three-part test set out in R.

v. W.(D.), (SCC), [1991] 1 SCR 742. At paragraph 50 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. [56] 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 offence beyond a reasonable doubt. The W.(D.) framework aims to prevent a convictionwhere reasonable doubt exists. [57] Of course, the above tests taken alone are oversimplifications of the analysis that a trial judge must undertake.

Most often thejudge has to apply the W.(D.) test in various stages of the evidence, with respect to the critical elements or vital points of the decision-making process such as the elements of the offence or the “elements of a defence”. [58] In other words, the rule applies to any exculpatory evidence regardless of the source, which means it applies to anything thatindicates that an accused could be innocent or gives an accused favour in terms of the facts. [59] 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.R. 31. Potential collusion of the witnesses [60] Given the tight-knit nature of soldiers serving in military units, a court martial must be particularly mindful and alert to uniqueevidentiary concerns that might arise.

From the onset of the trial, I was alert to the risk of collusion in the testimony of the witnesses,whether intentional or unintentional, as well as any potential that the chain of command or the MP were blinded by tunnel vision in theirinvestigation by focussing only on the cupcakes as the source of the symptoms experienced by the complainants.

Tunnel vision existswhen authorities focus on only one suspect or cause and ignore or suppress evidence that is inconsistent with the suspect’s guilt. [61] The defence conceded that there was no evidence of intentional collusion, but he argued that the perceptions of the affectedindividuals were irretrievably tainted.

He asserted that when considering the evidence as a whole, with respect to the inferences to bedrawn, the unintentional collusion will taint the probative force of the assertions. [62] Upon listening to the evidence, the Court found that there was definitely collaboration and consultation ongoing between thewitnesses as they tried to narrow down what they ate or did that day that might have been the source of their individual symptoms.

Inlight of the impact that the incident had on the live-fire exercise that led to the order to cease firing of the guns from the gun line, theircombined efforts to work together to quickly identify a common denominator as a source of their symptoms was completelyunderstandable. [63] In reviewing the evidence, I found that the collaboration and consultation that occurred was not to the effect that anyoneconcocted evidence.

After coming to this conclusion, the Court remained extremely vigilant and still exercised heightened caution, beingalert to the potential that the complainants may have unconsciously coloured or tailored their individual description of their ownsymptoms based on what their peers were saying.

It was for this reason that during the court proceedings, the Court provided somewitnesses a bit more latitude with respect to explaining how things unfolded. [64] In their individual testimonies, I found the witnesses to be particularly sensitive to and straightforward in clarifying when theywere relying upon something they heard via hearsay or they heard directly from the accused. When asked why they came to theconclusion that the source of their symptoms was the cupcakes, they all described somewhat different reasoning that was applicable tothe facts of their own situation.

In another example, when asked who baked the cupcakes, some witnesses stated that based on whatothers said, they “believed” that Bombardier Cogswell did, but they had no direct knowledge whereas other witnesses testified thatBombardier Cogswell told them directly that she had baked the cupcakes. [65] After assessing whether there was any evidence of unconscious collusion or tunnel vision on behalf of the chain of command

or the military police in their investigation, I am satisfied that there was no evidence to suggest an elevated risk associated with these concerns. Further, the fact that all the complainants eventually came to the same conclusion in narrowing down the cupcakes as the source of their symptoms does not suggest on its own that they came to their finding in an improper way. [ 66 ] In assessing the common elements to all the charges, I broke down the first part of the analysis into three questions to be considered: (

a) Did the soldiers consume cannabis that day? (

b) Were the cupcakes the source of the cannabis? and (

c) Having baked the cupcakes, did Bombardier Cogswell put cannabis into the cupcakes? Did the soldiers consume cannabis that day? [ 67 ] The defence argued that the prosecution has not proven beyond a reasonable doubt that the symptoms that manifested in the complainants came from cannabis.

In fact, he argued that the prosecution did not exclude the possibility that the symptoms arose from something other than cannabis or that the marihuana exposure came from another source. [ 68 ] He also argued that based on the testimony of the various witnesses, the symptoms they describe are not consistent with ingesting marihuana and he raised specific concerns with the testimonies of Master Bombardier (then-Gunner) Long and Sergeant (then- Master Bombardier) Vallerand with respect to the onset of their symptoms. [ 69 ] Applying the first step of the W.D. analysis to this question, I considered the exculpatory account advanced by the defence.

Upon a review of the evidence, I found there is evidence emerging from the facts that is favourable to Bombardier Cogswell, which includes the various inconsistencies in the complainant’s evidence regarding the symptoms they experienced and when they felt them and it needed to be closely analysed. [ 70 ] My analysis began with the expert witness, Constable Watson, who was qualified as an expert before the Court due to his expertise as a Drug Recognition Expert (DRE). He is currently a constable with the Fredericton Police Force.

He has been specifically trained to identify people whose driving is impaired by drugs other than, or in addition to, alcohol. His testimony was particularly precise and detailed in answering the questions put to him, providing confidence to the Court. He had no involvement with the current case and based on his training and experience, he described those symptoms commonly associated with impairment from cannabis. Based on the limited nature of his testimony, I found his testimony to be both credible and reliable. [ 71 ] He described that the following symptoms are associated with the use of cannabis: (

a) with respect to the eyes, included but not limited to red blood shot eyes, dilated pupils, lack of convergence and rebound dilation; (

b) eyelid tremors, fluttering of the eye, body tremors (legs and fingers), which are symptoms specific to cannabis; (

c) performing poorly on psychophysical test, short-term memory problems, problems focussing, problems following directions and problems doing more than one thing at once; (

d) elevated pulse and blood pressure, green or brown coating on the tongue;

(

e) paranoia; (

f) muscle relaxant and loss of inhibitions; and (

g) increased appetite. [ 72 ] Constable Watson also confirmed that there is a distinction in onset and duration of symptoms depending on whether cannabis is ingested or smoked. When you ingest cannabis, in an edible form, the peak effects occur within one to three hours and the duration of effects can last up to six to eight hours with some effects lasting up to twenty-four hours. [ 73 ] He confirmed that gender, ethnicity and tolerance level can also affect the level of impairment.

Similarly, with respect to environmental factors, mental health, food consumed and sleep patterns will also have an impact on the effects from cannabis consumption. [ 74 ] He confirmed that men would be more tolerant to taking in the same amount of cannabis as women, simply because they are larger in general. However, he also added that independent of the factor of size, gender also plays a role because of the different ways that the body metabolizes the substance. [ 75 ] He confirmed that not all people will experience impairment in the same fashion.

As far as symptoms, it is more about your mood and mental health going into the experience and it is impossible to say that there is a predictable range of effects as some people will have a higher tolerance than others. He confirmed that all drugs will affect people differently.

Symptoms described [ 76 ] The defence argued that the symptoms described by the complainants, particularly by Sergeant (then-Master Bombardier) Vallerand and Master Bombardier (then-Gunner) Long are inconsistent with cannabis consumption. [ 77 ] At the request of the chain of command, Corporal Hepditch, the medical technician assigned to EX COMMON GUNNER, attended to the complainants at the gun line.

He testified that after assessing the eight members, he determined that there was a very low likelihood that the cause of their symptoms was from exhaustion, heat stroke or dehydration. [ 78 ] Under cross-examination, Constable Watson confirmed that if a person consumed edibles, due to the way that the body metabolizes them through the liver, a person can feel some effects within thirty minutes. However, Master Bombardier (then-Gunner) Long told the Court that he started to feel symptoms about ten to fifteen minutes after he consumed his cupcake. He described his symptoms as a “pasty mouth” and a “body buzz”.

However, he also stated that the drive to Airstrip 1 was only ten minutes which the evidence suggests it was not. Then-Bombardier Slade testified that he slept for the duration of the drive between the last location and Airstrip 1 which he estimated to be between thirty and forty-five minutes.

Although there was no evidence before the Court as to the exact distance travelled between the two positions, the evidence given by those in the vehicle suggest that it was not a ten-minute drive, but rather a significant enough drive that then-Bombardier Slade intentionally did not consume his Monster Energy drink so as to ensure that he could sleep in the vehicle on the way. [ 79 ] Other evidence suggests that Master Bombardier Vallerand’s detachment did not leave immediately after returning from the canteen.

They returned to their vehicles to do work before they received the notice to pack up and move. [ 80 ] The Court noted that based on their individual testimonies, then-Gunner Long and then-Master Bombardier Vallerand both visited the canteen at roughly the same time and travelled together in the same vehicle from their position to the gun line. Then-Gunner Long was driving and then-Master Bombardier Vallerand was seated in the passenger seat beside him.

[ 81 ] Sergeant (then-Master Bombardier) Vallerand testified that he started to feel tired and sick to his stomach after disassembling and packing up the gun as they were preparing to move. While they were driving in the truck, at approximately 1315 hours, he experienced an upset stomach and his symptoms worsened, which made him think his symptoms were caused by something he ate.

He estimated that he felt this way approximately forty minutes after he consumed the cupcake from the canteen. [ 82 ] Master Bombardier, (then-Gunner) Long testified that it was while he was driving and listening to the music around him, that he started to become aware of the effects of the cannabis. He described how he was watching the command-post vehicle in front of him and he started veering off. He testified that the dust plume ahead appeared animated. However, he explained that he did not feel the full effects until they got to their destination at Airstrip 1.

Since both then-Master Bombardier Vallerand and then-Gunner Long started to experience symptoms around the same time, while in the vehicle, the consistency of the evidence suggests that then-Gunner Long could not have experienced the symptoms he described within ten to fifteen minutes of eating his cupcake. [ 83 ] Another example provided by defence is based on Mr. (then-Bombardier) Slade’s testimony that after then-Gunner Long received medical treatment at the Airstrip 1 location that he said to the soldiers present, “Boys, take some Gravol, I feel a lot better about 30 seconds after taking it.” The defence argument is based on the premise that if then-Gunner Long had consumed cannabis, it would not be possible for him to feel better within thirty seconds of taking Gravol.

In reviewing the whole of the evidence, other more reliable evidence confirms that then-Gunner Long’s condition had not improved. [ 84 ] Warrant Officer, (then-Sergeant) Sampson testified that after the members had been assessed by Corporal Hepditch, he accompanied the troops to the assembly area (AA). Warrant Officer Sampson told the court that he drove one vehicle to the AA because then-Gunner Long was in no condition to drive.

When they arrived at the AA, he testified that then-Gunner Long, who had been the detachment driver for the duration of the exercise, who he described as a solid soldier, keen, with strong leadership and observant, looked at him saying that he was lost and had no idea where he was and what was going on. It was a location where then-Gunner Long had been countless times.

Consequently, independent reliable evidence does not support the fact that thirty seconds after taking a Gravol, then-Gunner Long was cured of his symptoms. [ 85 ] After reviewing the inconsistencies in Master Bombardier (then-Gunner) Long’s testimony, I found that there is consistency in his underestimation of time when compared to the facts unfolding around him which suggests that he had lost all sense of time which is consistent with the ingestion of cannabis.

Further, it is important to keep in mind that when he took the Gravol, it was after they had arrived at Airstrip 1, where he also testified he started to feel the full extent of the intoxication or impairment. [ 86 ] Sergeant (then-Master Bombardier) Vallerand testified that by the time they arrived at Airstrip 1, he had no motivation and that simple tasks such as unhooking the gun had become complicated, and he decided to go talk to then-Sergeant Sampson.

Sergeant (then-Master Bombardier) Vallerand testified that it was after they arrived at Airstrip 1 that his symptoms changed and he started to feel “spaced out” and “high”, and could not concentrate. He found it hard to focus, was confused and he felt he could not do his job. He explained that the onset of his symptoms were sudden and “hit him like a brick”.

He described that when he felt that way he was not exercising his best judgement, which included going up to the BSM to tell him that he felt high. [ 87 ] However, he also told the Court that at approximately 1430 hours that afternoon, he felt completely fine and went from extreme fatigue and lethargy to the point where he could possibly run a half-marathon. He told the Court that he was convinced that he had been high as he was familiar with the feeling from past usage prior to joining the CAF.

He also stated that he specifically volunteered for the urine test to determine what he had ingested. [ 88 ] Warrant Officer (then-Sergeant) Sampson’s evidence is particularly helpful.

He testified to being the gun line Sergeant Major on that day and explained that he had three guns under him with three different detachment commanders, being then-Master Bombardiers Vallerand, Jenkins and Diggs. [ 89 ] Warrant Officer (then-Sergeant) Sampson stated that the mobile canteen truck showed up at the location where Master Bombardier Vallerand’s detachment was located at 1240 hours as he specifically recalls telling Bombardier Cogswell where to park.

He stated that, since his detachments at that location would be leaving soon, he told them to go to the canteen as soon as it arrived. [ 90 ] What is particularly helpful with Warrant Officer Sampson’s testimony is that it confirms the fact that he witnessed no problems with the behaviour of the members in Master Bombardier Vallerand’s detachment at the first position, but witnessed a noticeable change in their behaviour when they arrived at the second position on the gun line at Airstrip 1.

[ 91 ] Warrant Officer (then-Sergeant) Sampson testified that after the detachment arrived at the gun line, then-Master Bombardier Vallerand could not comprehend a direction and was confused and disoriented. Both Sergeant (then-Master Bombardier) Vallerand and Warrant Officer (then-Sergeant) Sampson testified that while at Airstrip 1, then-Master Bombardier Vallerand approached then-Sergeant Sampson declaring, “I am fucking high.” Warrant Officer (then Sergeant) Sampson testified that he originally believed that then-Master Bombardier Vallerand was joking and told him to get back to work.

Warrant Officer Sampson also testified that then-Master Bombardier Vallerand repeated this about three times before he also noticed that then-Bombardier Lechman, a healthy fit soldier, out of nowhere e ting countless chips and smoking like crazy. He stated he had never seen her do that before. He also noted that then-Gunner Long stood there almost like a statue motionless, staring at him with no awareness of what was going on.

He noted that then-Gunner Long’s mood changed and started to transition to confusion and anger as to why they were feeling that way and Warrant Officer Sampson estimated that they were all scared. [ 92 ] However, Warrant Officer Sampson said that when he realized that the members of the detachment were having problems, he ordered them to go and stay in the truck which was air conditioned. However, mere minutes after he ordered them into the truck, they exited it and began attempting to record their gun again.

He explained that he grabbed the trailer to help and when the detachment members all fell down and started to laugh, he ordered them back into the truck again. [ 93 ] Although Master Bombardier (then-Gunner) Long might have estimated a timeline of his experiences that appears on the surface to be inconsistent with the science on the topic, the Court did not give it too much weight in light of the reliability of the third- party observations and the other confirmatory evidence of his symptoms.

Then-gunner Long was intoxicated and clearly had lost all sense and perception of time. [ 94 ] Although Sergeant Vallerand also described symptoms such as an upset stomach which Defence intimated might be inconsistent with consumption of cannabis, it is not necessarily inconsistent with the ingestion of food products and it must be put into context.

As Constable Watson described, there is no predictable range of effects as some people will have a higher tolerance than others and drugs will affect people differently. [ 95 ] What is the most persuasive with respect to then-Gunner Long’s and then-Master Bombardier Vallerand’s conduct is that Warrant Officer (then-Sergeant) Sampson, who was completely sober, testified that based on his observations and interactions with them, which includes some of the examples provided above, they were intoxicated.

The Court also found that their symptoms were consistent with the expected symptoms described by Constable Watson flowing from the consumption of cannabis.

Further, in order to confirm what they had been exposed to, both then-Gunner Long and then-Master Bombardier Vallerand voluntarily submitted to a drug test, which confirmed that they had consumed cannabis within twenty-eight days of taking the test. [ 96 ] Although the Court dealt primarily with those allegations related to then-Gunner Long and then-Master Bombardier Vallerand as they were specifically challenged by the defence as exculpatory to Bombardier Cogswell’s defence, the evidence as a whole suggests that eight CAF members, being then-Gunners Chubry, Eoll, Jarbeau, Long and Penner, then-Bombardiers Lechman and Slade and then- Master Bombardier Vallerand, experienced symptoms that day. [ 97 ] The symptoms identified from Master Bombardier Vallerand’s detachment were as follows: (

a) Bombardier, (then-Gunner) Penner described himself as being “very lethargic” explaining to the court that lethargy was not uncommon while on exercise in the field. Consequently, at first, he did not associate the lethargy with anything specific. However, he noted that the extreme lethargy persisted and that was abnormal. Master Bombardier Diggs testified that when Bombardier Penner came to his detachment’s location, he noticed that Bombardier Penner was not acting normally. (

b) Bombardier, (then-Gunner) Jarbeau described being particularly anxious, paranoid and sick to his stomach, “with butterflies”. He described having the urge to vomit. Those members of his detachment who observed Gunner Jarbeau noted how sick he was. (

c) Mr., (then-Bombardier) Slade testified that while transiting in the vehicle to Airstrip 1, he slept for what he estimated to be half an hour, maybe forty-five minutes. When he woke up, he described himself as “particularly lethargic”. He stated everything was foggy, he was not coherent and was slow. He explained that he was nauseous but not experiencing the same nauseous feeling that he would normally get from eating food.

[ 98 ] The symptoms identified from the soldiers in Master Bombardier Diggs’ detachment were as follows: (

a) Master Bombardier, (then-Bombardier) Lechman testified that she felt dehydrated, lost a sense of time, was unable to perform tasks, was nauseous, could not fuse a round, was not able to listen to orders, had a hard time setting a fuse to delay and loaded the ammunition round awkwardly into the breech. She also fell off an ammunition box when attempting to sit down. She testified that although she might have a cigarette once in a while, she is not a smoker.

Mr. (then-Master Bombardier) Diggs described then- Bombardier Lechman at that timem as being paranoid and observed her chain smoking and eating a bag of Doritos. Warrant Officer Samson told the court he also observed Bombardier Lechman, who he considered to be healthy and fit, who out of nowhere was eating countless chips and “smoking like crazy”. He had never observed her doing anything like that before. (

b) Bombardier, (then-Gunner) Chubry testified that he was given a cupcake by then-Bombardier Lechman which he ate almost immediately. His symptoms manifested themselves when he was on sentry duty. He described feeling high, as he knew what the effects were, but he thought there was no way he could be in that situation and was worried for his career. He explained that the sentry shifts are normally an hour. He stated that after his shift, he returned to the gun line and normally he would return to his detachment, but instead he was just wandering around.

Mr. (then-Master Bombardier) Diggs testified that he observed then-Gunner Chubry being anxious and not able to sit still which was very out of character for him as he is usually very calm. (

c) Bombardier, (then-Gunner) Eoll described that he felt “a little weird and spacey”, like when you “just wake up” and “you do not feel all there”. At first, he thought he was dehydrated so he drank one and a half litres of water, but then he realized he was not sweating so he could not be dehydrated. He explained that small tasks became harder and harder to do, he felt sluggish and groggy, and found the task of setting fuses more difficult, he would quickly forget what he was told to do, tasks took longer than they normally would, he felt paranoid and had no sense of motivation.

His symptoms lasted three or four hours. Mr. (then Master Bombardier) Diggs testified that then-Gunner Eoll was the first of the three that he noticed acting more out of character than normal.

He described him as the kind of guy who might trip over his shoelace and, at that time, he just did not seem able to coordinate his movements, so that raised flags. [ 99 ] Mr. (then Master Bombardier) Diggs told the Court that he had known his detachment members (then-Bombardier Lechman and then-Gunners Chubry and Eoll) since they graduated from their Developmental Period 1 training which is their introductory phase training.

He explained that they were soldiers he had trained and was familiar with their behavioural patterns and the things he witnessed them doing were out of character for them. [ 100 ] I reviewed the testimony of all the complainants for its credibility and reliability. I found that all the complainants were credible and made every effort to be honest and forthright.

None of the complainants displayed any particular animosity towards the accused nor did they seem to have any incentive to lie or embellish their personal accounts of what occurred to them. [ 101 ] However, as I stated previously, due to their intoxication at the time of the incident, the reliability of their evidence required the Court to be particularly cautious and weigh it against both the evidence as a whole and the observations of independent witnesses such as then-Sergeant Sampson and then-Master Bombardier Diggs who were both sober and familiar with the work habits of the affected members who were their subordinates. [ 102 ] In

summary, the above-listed symptoms included anxiety, paranoia, nausea, feeling spaced out, foggy, increased appetite, dry mouth and dehydration that could not be quenched with liquids, loss of sense of time, fatigue, an inability to perform tasks they were trained to complete, impaired motor skills, confusion, and difficulty focussing which are all consistent with the symptoms expected as described by Constable Watson. I found that the symptoms for each of the eight complainants were consistent with those symptoms described by Constable Watson.

Urine tests [ 103 ] The defence argued that the urine samples do not confirm that the complainants were exposed to marihuana on that specific day, being 21 July 2018. He argued the tests are not meaningful other than to confirm that the individuals providing the sample had consumed or ingested marihuana within twenty-eight days of the test.

He argued that we do not know whether the concentrations found are significant or whether they could relate to an inadvertent exposure. [ 104 ] Upon a review of the toxicology reports entered into evidence, the form clearly indicates that there are established confirmation cut off levels, which ensure inadvertent exposure is not reported as positive. All of the toxicology results were above the cut-off level of

15 ng/ml. [ 105 ] In assessing this defence argument, the Court noted that there was unrefuted evidence before the court that then-Bombardier Lechman had never consumed cannabis or any drug prior to that day and then-Gunner Long had been sober and free of drugs and alcohol for eight years at that point in time. They both tested positive for having marihuana metabolite in their systems.

The others who voluntarily submitted to a urine test also tested positive for the exact same marihuana metabolite, making it one hundred per cent of those submitting to the urine tests who tested positive for having the exact same substance in their bodies. Although it is possible that some might have consumed marihuana within twenty-eight days of the test, the unrefuted evidence that then-Bombardier Lechman and then- Gunner Long had not, strengthens the inference that can be drawn from the toxicology results.

It is also notable that the test results reveal that the laboratory did not test only cannabis consumption, but rather, it tested for all the controlled narcotics possible as the soldiers testified that they had no idea at that time what they had been exposed to. [ 106 ] The testimonial evidence suggests that the soldiers felt high based on the belief that there was “something” in the cupcakes. It could have been any type of substance and the affected soldiers and staff wanted to know what it was that caused their symptoms.

Given the voluntary nature of the testing, and the fact that the consumption of cannabis was illegal at the time, there is a low likelihood that someone who might have consumed prohibited drugs within that twenty-eight-day window would voluntarily get tested as there would be the distinct possibility that their results could reflect the presence of a drug other than that identified in the tests of the majority of the other members who agreed to be tested.

As the Agreed Statement of Fact indicates, it was prohibited for CAF members to use cannabis or any other prohibited substance without a prescription and, if identified, they could be subject to disciplinary measures. [ 107 ] Upon a review of all the toxicology reports, it was clear that there was a full range of tests completed which included testing for opiates, cocaine, morphine, codeine, oxycodone, amphetamines, methamphetamine, MDA, and MDMA.

Consistent with their testimony, all the complainants tested negative for everything other than marihuana metabolite. [ 108 ] The evidence suggests that some of the gunners displayed symptoms of paranoia and were afraid for their own reasons and had the courage to say no to being tested.

I emphasize this fact that they did not get tested simply to say that there was no evidence that anyone was pressured to submit to the urine test and if the most junior, no-hook gunners felt free to refuse to be tested, then so too would any of the others who might have been concerned. [ 109 ] After considering all the evidence on the question of whether or not the complainants ingested cannabis, in applying the W.(D.) test set out above, I do not believe the exculpatory accounts advanced by the defence. [ 110 ] I have verified the following primary facts established by the evidence: (

a) the symptoms described and observed of the eight persons affected were consistent with expected symptoms described by Constable Watson from the consumption of cannabis; (

b) the testimonial evidence suggests that the soldiers felt “high”; (

c) Corporal Hepditch determined that there was a very low likelihood that the cause of the symptoms was from exhaustion, heat stroke or dehydration; (

d) there is unrefuted evidence that then-Bombardier Lechman had never consumed cannabis or any drug prior to that day; (

e) there is also unrefuted evidence that then-Gunner Long had been sober and free of drugs and alcohol for eight years at that point in time; (

f) The supervisors, Warrant Officer (then-Sergeant) Sampson and then-Master Bombardier Diggs who were present and observing the soldiers, testified that at the time in question the conduct of both then-Gunner Long and then-Bombardier Lechman was uncharacteristic of their normal behaviour and that they were displaying symptoms consistent with the consumption of cannabis ;

(

g) having voluntarily submitted a urine sample for drug testing, both then-Bombardier Lechman and then-Gunner Long tested positive for having marihuana metabolite in their systems; (

h) all those members who displayed symptoms and voluntarily took a urine test tested positive for the exact same substance as then-Gunner Long and then-Bombardier Lechman, being marihuana metabolite. [ 111 ] On the basis of the totality of the evidence that I do accept, with the primary facts set out above, I am convinced beyond a reasonable doubt that the soldiers in question, being then-Gunners Chubry, Eoll, Jarbeau, Long and Penner, then-Bombardiers Lechman and Slade and then-Master Bombardier Vallerand did consume or ingest cannabis on that day in question. [ 112 ] I find, from the material proven facts, the only reasonable and rational conclusion to be drawn is that the common substance ingested by the soldiers was cannabis.

This inference is logically and reasonably drawn from the group of facts clearly established at subparagraphs 110 (

a) to (

h) and proved in this court martial. [ 113 ] Further, based on the totality of the evidence that I do accept, I find that it does not matter that then-Bombardier Slade and then- Gunners Penner and Jarbeau did not take urine tests. Their symptoms were completely consistent with those of their peers who engaged in the same activities alongside them at the exact same time and are consistent with the evidence as a whole. [ 114 ] Next, I proceeded to assess the source of the cannabis.

Did the cannabis come from the cupcakes? [ 115 ] The defence also asserted that if the Court finds that the complainants did consume cannabis then there is no proof that it came from the cupcakes. Defence argues that the prosecution has not proven beyond a reasonable doubt that the cannabis ingested came from the cupcakes. He suggested that it could have come from the drinking water. [ 116 ] In both her interviews, Bombardier Cogswell was adamant that she did not put cannabis in the cupcakes.

In her second interview, when challenged on the results of a positive test on a cupcake wrapper, she immediately suggested that she knew who had done it and suggested that some of the exercise participants who ate her cupcakes also had cannabis droppers and other edibles in the field during the exercise. [ 117 ] After finding that the ingestion of cannabis was the source of the symptoms experienced by the soldiers, I must consider all plausible theories or reasonable possibilities that are inconsistent with Bombardier Cogswell’s guilt, which includes the exculpatory accounts advanced by the defence or any exculpatory evidence from any of the prosecution’s witnesses. [ 118 ] I began my analysis by outlining the accepted evidence before the Court that is favourable to Bombardier Cogswell, which included the fact that then-Master Bombardier Diggs consumed a cupcake and, aside from a dry pasty mouth, he did not suffer any effects. [ 119 ] I began first by assessing whether there is any evidence that supports another reasonable inference other than the cupcakes as the source of the cannabis.

I did not rely upon the assertions of the witnesses that the source of the cannabis was the cupcakes, but rather I conducted my own assessment on the likely source of the cannabis by relying upon as much independent and reliable evidence as possible. Other theories [ 120 ] Firstly, it was recognized that there were two different detachments originally situated in two separate geographical locations

that were affected. Given that the Court found beyond a reasonable doubt that the individuals in question did consume cannabis, I referred back to Constable Watson’s testimony and the fact that the peak effects flowing from the consumption of cannabis edibles would take from one to three hours. [ 121 ] Constable Watson testified that based on the manner upon which cannabis edibles are metabolized, they take longer than inhaled marihuana to present symptoms. He also confirmed that the effects from edibles could kick in as early as thirty minutes after ingestion.

Given the timing of the onset of the symptoms within both detachments, and based on the fact that the manifestation of symptoms in Master Bombardier Vallerand’s detachment occurred while they were driving between the two locations and peaked after they arrived at the gun line, I determined that the common source had to have originated in each of the two separate locations. [ 122 ] Warrant Officer (then-Sergeant) Sampson confirmed that he ate the same meals that were served to the troops that day in the location where Master Vallerand’s detachment was first located.

He told the Court that they consumed hot rations for breakfast, which he believed were hash browns and eggs. For lunch, he confirmed that they individually consumed their hard rations, also known as Individual Meal Packs (IMP) that the soldiers carried with them. The Court also heard evidence that the IMPs were sealed meals and are often different for each individual and meal. [ 123 ] Bombardier (then-Gunner) Jarbeau described that they all carried their own water. Based on the time period when the symptoms manifested themselves, it is highly unlikely that the water was the source of the symptoms.

Mr., (then-Bombardier) Slade testified on this point. He stated: “I’ve been in high heat throughout my career and I was drinking a lot of water as I was supervisor and I was ensuring that members of my detachment were hydrated.” Given the heat on that day, which the evidence suggested was approximately thirty degrees and based on the testimony of Master Bombardier Slade, water was being regularly ingested by the soldiers starting very early in the day.

Consequently, if water was the source of the cannabis, their symptoms of intoxication would have presented much earlier than they did. [ 124 ] More decisively, if the water had been the source of the problem, there would have been much wider effects and implications on persons affected given that the evidence was that there were as many as forty persons in attendance between these two locations. Consequently, there is no evidence to suggest that the water they carried was compromised or contaminated that day.

Canteen [ 125 ] Based on the consistency of the evidence, the mobile canteen truck arrived at the gun line at Airstrip 1 between 1030 and 1100 hours where Master Bombardier Diggs’ detachment was in position. The canteen then moved to Master Bombardier Vallerand’s position, arriving at approximately 1240 hours in the afternoon.

The evidence also suggests that the soldiers in Master Bombardier Diggs’ detachment started to feel their symptoms earlier than the soldiers in Master Bombardier Vallerand’s detachment. [ 126 ] The Court scrutinized the evidence based on what the soldiers could have been exposed to at the canteen, other than the cupcakes. The affected members of Master Bombardier Diggs’ detachment testified that they obtained the following from the canteen that day: (

a) Then-Master Bombardier Diggs: purchased a Gatorade and a Monster Energy drink; received a cupcake and ate no lunch; (

b) Then-Bombardier Lechman: purchased a Gatorade; received two cupcakes, one for her and one which she gave to then- Gunner Chubry; (

c) Then-Gunner Chubry: did not go to the canteen because it was morning, but received a cupcake from then-Bombardier Lechman which he ate around 1100 hours; and (

d) Then-Gunner Eoll: purchased a pink Monster Energy drink, chocolate and cigarettes and received a cupcake. He ate the chocolate immediately, drank the pink Monster Energy drink with his IMP and ate the cupcake for dessert afterwards. He testified that Bombardier Cogswell told him that she made the cupcakes so he asked if they cost money and she told him they were free. He recalled Bombardier Cogswell warning him that the cupcakes contained avocado oil.

[ 127 ] Master Bombardier, (then-Bombardier) Lechman testified that she started to feel the symptoms approximately thirty minutes to an hour after eating the cupcake. [ 128 ] Bombardier, (then-Gunner) Chubry testified that he started to experience symptoms approximately forty-five minutes after he ate the cupcake that Bombardier Lechman gave him. [ 129 ] Bombardier, (then-Gunner) Eoll testified that approximately forty-five minutes after he ate the cupcake he started to feel symptoms. [ 130 ] Mr., (then-Master Bombardier) Diggs, who also attended the canteen, testified that despite receiving a cupcake, aside from having a dry pasty mouth, he did not experience any notable symptoms.

However, he also told the Court that he was very focussed on resolving what was going on with his troops. He explained that he was so focussed that he did not eat his lunch that day. It was then- Master Bombardier Diggs who took the initiative to collect the cupcake wrappers and took steps to ensure the safety of his gun detachment. Mr. (then-Master Bombardier) Diggs also testified that, at the time, he was very fit and weighed approximately 250 pounds. In the Court’s observation, Mr.

Diggs is perhaps twice the size of some of the other witnesses, primarily Master Bombardier Lechman. [ 131 ] Based on the testimony of Constable Watson, gender, ethnicity and tolerance level will affect the manifestation of symptoms. Constable Watson also explained that men are more tolerant than women when ingesting equivalent amounts. He explained that this is partly due to their size and partly due to the different ways their bodies metabolize a drug.

He explained that some people have a greater tolerance than others and environmental factors including one’s mental health, the food consumed and sleep are all factors that play a role. [ 132 ] Mr. (then-Master Bombardier) Diggs also confirmed for the court that based on where they were within the training scenario on the day in question, his detachment was well rested and none of his soldiers were sleep deprived. [ 133 ] After ensuring members at the Airstrip 1 location were served, the mobile canteen truck drove to a second location where Master Bombardier Vallerand’s detachment was positioned.

As explained earlier, based on the testimony of Warrant Sampson, the mobile canteen arrived at the second location at 1240 hours. [ 134 ] Sergeant, (then-Master Bombardier) Vallerand estimated that he started to feel his symptoms around 1315 hours while they were driving in their vehicle to the next position.

Based on the evidence, his whole detachment started to feel the symptoms while they were driving between the two locations. [ 135 ] If Sergeant (then-Master Bombardier) Vallerand’s time assessment of 1315 hours is relatively accurate, and given that an edible can take from thirty to sixty minutes before its effects are felt, this would put the consumption of the cannabis by Master Bombardier Vallerand’s detachment somewhere after 1215 hours up to 1245 hours or later, which coincides with the arrival of the canteen truck at their position. [ 136 ] Given the fact that the canteen arrived at their position around lunch and given the timing when their symptoms presented themselves, the Court ruled out the potential that what they consumed for breakfast was a cause or contributing factor to their symptoms.

For lunch, the majority of the complainants in both detachments confirmed that they consumed only IMPs. [ 137 ] The affected soldiers from then-Master Bombardier Vallerand’s detachment testified that they obtained the following items from the canteen: (

a) Then-Master Bombardier Vallerand: purchased one vitamin water; received a cupcake. He thought he had hard rations for lunch, but could not really remember; (

b) Then-Bombardier Slade: purchased a t-shirt and two or three Monster Energy drinks for the exercise; received a cupcake. He ate an IMP for lunch;

(

c) Then-Gunner Long: did not purchase anything; received a cupcake. He ate IMP for lunch; (

d) Then-Gunner Jarbeau: did not purchase anything; received a cupcake. He ate IMP for lunch; and (

e) Then-Gunner Penner: purchased cigarettes and a drink; did not receive a cupcake from the canteen, but later he ate the remainder of then-Gunner Jarbeau’s cupcake which he found in the back of the truck. It was approximately a quarter of the cupcake. [ 138 ] Warrant Officer (then-Sergeant) Sampson explained that when he briefed the canteen vehicle on where to park, he was offered a cupcake, but he refused one as he wanted to ensure that the troops received one first and said that if there were any left over, he would have one.

Then-Sergeant Sampson did not consume a cupcake and displayed no symptoms at all. [ 139 ] Sergeant, (then-Master Bombardier) Vallerand testified that he ate his cupcake right away and then went back to the truck where they did random work until they got the notice to move to Airstrip 1.

He testified that he has never become sick from drinking vitamin water. [ 140 ] The Court noted that although some of the troop consumed Monster Energy drinks, Gatorade and chocolate bars, the evidence was also that these items were sealed and other than the cupcakes, there was no uniformity in the other items that were consumed. [ 141 ] Upon closer review, from the two detachments, three individuals consumed only the cupcakes from the canteen and nothing else. In Master Bombardier Vallerand’s detachment, in addition to IMPs, then-Gunners Long and Jarbeau consumed only the cupcakes from the canteen.

Similarly, from Master Bombardier Diggs’ detachment, then-Gunner Chubry did not attend the canteen at all and only ate the cupcake given to him by then-Bombardier Lechman.

In all three of these cases, the members displayed symptoms consistent with the consumption of cannabis which minimizes the possibility that the source of the cannabis could have come from something at the canteen other than the cupcakes. [ 142 ] Initially, all the affected members testified to having personally suspected the cause of their symptoms to have come from something other than cannabis, such as possible heat injury, exhaustion or perhaps another food item.

Sergeant, (then-Master Bombardier) Vallerand explained that because his stomach was “upset” and “gassy”, he originally speculated that the cause was something bad in the ingredients of the cupcake, such as the milk and eggs. However, once he arrived at Airstrip 1, his gassy sick stomach changed and he started to feel “high”, a feeling he said he recognized from personal experience prior to joining the CAF.

Some of those who recognized the feeling of being “high” became understandably paranoid and worried that they were experiencing their symptoms in isolation. [ 143 ] Once Master Bombardier Vallerand’s detachment arrived at Airstrip 1, they became aware that they were all feeling the same way. Bombardier, (then-Gunner) Penner explained that it was while they were in the truck that they came to the conclusion that none of them were doing well and they were feeling sick. Once they stopped and intermingled with Master Bombardier Diggs’s detachment, they learned that they were not the only ones feeling the same way.

After discussing the only commonality they shared, they formed the suspicion that the cupcake was the source of the problem. [ 144 ] After medical issues arising from such ailments as heat exhaustion were deemed to have a low likelihood of causing the symptoms experienced by the soldiers, the only common denominator remaining that was shared by the soldiers from the two detachments, who were separated in physical location, was the consumption of the cupcakes that came from the mobile canteen that visited both locations. [ 145 ] As I explained earlier, the prosecution does not need to negate irrational or fanciful conjectures that may be consistent with innocence.

These theories or possibilities must be based on logic and experience applied to the evidence, not on speculation (see Villaroman , at paragraph 37 ). Cupcake wrapper

[ 146 ] Although I am of the view that prosecution did not have to produce forensic evidence, and additional evidence is not required to convince the Court beyond a reasonable doubt that there was cannabis in the cupcakes, there was in fact a wrapper from the cupcakes that was collected and tested. [ 147 ] The defence raised concerns regarding the one cupcake wrapper collected from the cupcakes consumed, which was given to the MP and tested by Health Canada. The testing revealed the presence of THC. [ 148 ] The defence argued that the fact that a single wrapper tested positive for THC is of no probative value.

He raised concerns with the chain of custody with respect to the wrapper and the continuity of it as evidence. He argued that the way it was handled cannot exclude potential contamination. [ 149 ] I agree that there is a lack of clarity as to how the cupcake wrapper was handled prior to it being handed over to the MP. The individuals handling the wrapper were not police nor were they trained to record every individual to whom it was passed. This led to some confusion as to how the Ziploc bag made its way to the MP.

In fact, the evidence suggests that the only person collecting wrappers was Master Bombardier Diggs who put one wrapper (or possibly more) into a Ziploc bag before he handed it off to Warrant Officer Mangrove who gave it to the BSM or someone higher in rank to him and the Ziploc bag eventually made its way to then-Captain Kaempffer who then gave the Ziploc baggie containing the wrapper directly to the MP, Corporal Whitehall. [ 150 ] At the early stages of the management of the incident, the people who handled the Ziploc bag were not police and did not properly record who they handed it to, but the evidence also suggests that they were trusted members of the chain of command and their testimony reflected that they understood the need to safeguard the wrapper in the Ziploc bag as evidence, which they ultimately did, given that it did make its way to the MP and was then properly entered as evidence and safeguarded from that point on.

Importantly, the cupcake wrapper made it directly to the MP within a number of hours and there is no evidence to suggest it was left sitting unattended for days. [ 151 ] None of the witnesses testified to opening the Ziploc bag nor tampering with its contents. Further, there is no evidence that anyone witnessed any tampering. It is important to highlight that based on then-Gunner

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