R v Duncan, 2013 CM 2003

COURT MARTIAL Citation: R v Duncan , 2013 CM 2003 Date: 20130130 Docket: 201257 General Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Captain M.R. Duncan, Accused Before: Commander P.J. Lamont, M.J. REASONS FOR AN APPLICATION – NO PRIMA FACIE CASE (Orally) [ 1 ] Captain Duncan is charged in a charge sheet containing two charges.

In charge number one, a charge of disobeying a lawful command of a superior officer, in that she "on or about 22 September 2011, at or near Canadian Forces Base Esquimalt, British Columbia, did take out a cash advance for fifteen thousand dollars for the Interprovincial Cadet Exchange programme, contrary to an order given to her by Lieutenant(

N) Meeker, an officer senior in appointment." [ 2 ] At her trial by General Court Martial, the court heard the evidence of Lieutenant(

N) Meeker, who testified that in September of 2011 she held the position of Staff Officer 3 for "movements" within the Regional Cadet Support Unit Pacific at Canadian Forces Base Esquimalt. In this capacity she supports the many thousands of cadets across Canada who travel as part of the cadet programme by making and paying for various logistical arrangements, such as transportation, accommodation and meals for the cadets. [ 3 ] Lieutenant(

N) Meeker directly supervised the accused, Captain Duncan, and two other officers, Captain Gee and Lieutenant Owen. She stated that they all do each others jobs, but she oversees the other officers. She testified that Captain Duncan has two areas of responsibility: movements and the Interprovincial Cadet Exchange Programme known as ICE.

[ 4 ] In order to fulfil these duties, the officers in the movements

section obtain cash advances of public funds. The money is disbursed to the cadet instructors who incur the expenses, pay for the same, and then send receipts back to the movements

section to support a claim that is made by the officer in the movements

section to account for the public money that was originally advanced to them. [ 5 ] Some time in September of 2011, Captain Duncan was away from work as she was ill. As Lieutenant(

N) Meeker did not know when she would return and the ICE Exchange was approaching, she, herself, obtained an advance for the ICE programme and destroyed the paperwork for the same purpose that she found on Captain Duncan's desk in the office they all share. When Captain Duncan returned to work there was a meeting around Lieutenant(

N) Meeker's desk, at which she told Captain Duncan that she had, herself, taken the advance for the ICE and that Captain Duncan was not to take another advance for the ICE. There is evidence that Captain Duncan did indeed take an advance for the ICE programme at some point after Lieutenant(

N) Meeker's instruction at the meeting. [ 6 ] Exhibit 3 is a draft position description for the position of Staff Officer 4-1 Movements occupied by Captain Duncan. It suggests in a handwritten endorsement that Captain Duncan, as SO 4-1 Movements, is responsible to SO 4 Movements, Lieutenant(

N) Meeker. [ 7 ] Yesterday at the close of the case of the prosecution and in the absence of the panel, I raised with counsel the issue of whether there was evidence that Lieutenant(

N) Meeker was a superior officer with respect to Captain Duncan at the time of the office meeting in September of 2011. The Queen's Regulations and Orders provides in

article 112.05, paragraph 13: When the case for the prosecution is closed, the judge may, of the judge's own motion or upon the motion of the accused, hear arguments as to whether a prima facie case has been made out against the accused, and: a. if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce the accused not guilty on that charge; or b. if the judge decides that a prima facie case has been made out in respect of a charge, the judge shall direct that the trial proceed on that charge. Note (

B) to

article 112.05 provides: A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essential ingredient such that the accused could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neither the credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has been established. The doctrine of reasonable doubt does not apply in respect of a prima facie case determination. [ 8 ] Note (

B) substantially captures the rule that applies with respect to directed verdicts of not guilty at the close of the evidence for the prosecution. That rule was recently reiterated by Binnie J. speaking for a majority of the Supreme Court of Canada in R v Barros , 2011 SCC 51 , at paragraph 48 : A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction [authority cited]. Whether or not the test is met on the facts is a question of law which does not command appellate deference to the trial judge. [ 9 ] The term "superior officer" is defined in

section 2 of the National Defence Act in terms of the relationship between two members of the Canadian Forces as follows: "superior officer" means any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member;

Thus at the relevant time, if and only if Lieutenant(

N) Meeker was authorized to give a lawful command to Captain Duncan then she was a superior officer in relation to Captain Duncan. The prosecutor does not rely upon any provision of the National Defence Act or a regulation as the source of the authority of Lieutenant(

N) Meeker to give a lawful command to Captain Duncan. The prosecutor submits though that the custom of the service is the source of the claimed authority. [ 10 ] "Custom" is defined in Oxford Dictionary as "a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place or time." [ 11 ] The rank structure of the Canadian Forces is set out in a

schedule to the National Defence Act and by the

schedule the Naval rank of lieutenant held by Lieutenant(

N) Meeker is equivalent to the rank of captain held by Captain Duncan [see QR&O

article 3.01, paragraph (2)]. In cases where the lawful command in question is given by someone of higher rank to someone of a lower rank, it is clear that the individual with a higher rank has the authority to give a command. Respect for the authority of and obedience of persons of a higher rank is inculcated in Canadian Forces recruits, both officers and non-commissioned members, from their earliest training, and is fostered throughout the time of their service by precept and by example.

This custom is a behaviour so firmly ingrained in members of the Canadian Forces and its observance so widely honoured in practise that it can without doubt be said to be a custom of the service that an individual holding a higher rank can give a command to an individual of lower rank. But in this case the court is dealing with a command that is alleged to have been given to another member of equivalent rank. [ 12 ] Queen's Regulations and Orders

article 19.015 provides: Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer. So ordinarily a member of the Canadian Forces does not have the authority to give a command to another member of the same or higher rank. The prosecutor submits though that Lieutenant(

N) Meeker as the supervisor of Captain Duncan had the authority to give her a command. The difficulty with this submission of the prosecutor is that in this case there is simply no evidence of a custom of the service that would invest Lieutenant(

N) Meeker or, indeed, workplace supervisors generally with the authority to give a lawful command to an officer of the same rank. The prosecutor also points to Note (

C) to Queen's Regulations and Orders

article 103.16, which reads: Where the accused is charged with an offence against a superior officer who is of the same rank, evidence must be adduced to show that the latter is the accused's superior on some other grounds, for example, by reason of the appointment which the superior officer holds. And submits that as the supervisor of Captain Duncan, Lieutenant(

N) Meeker was "an officer senior in appointment" as alleged in charge number one, and that this is evidence that she is a superior officer in accordance with the practise of the service. [ 13 ] I do not accept this submission. In my view, the reference to an appointment in Note (

C) is to capture the situation of a master corporal who is of the same rank as a corporal, but by reason of the appointment as master corporal is a superior in relation to a corporal, (see QR&O 3.08). An appointment to a position may be a widespread practise across the Canadian Forces, but of itself is not evidence of a custom of the service that the appointment confers authority to give a command to subordinates who are of equivalent or even of superior rank to the appointee. [ 14 ] In any event, by QR&O 1.095, a note to QR&O may provide guidance, but does not have the force or the effect of an

interpretation of the law. Nor has the court been asked to take judicial notice, pursuant to Military Rules of Evidence article 16(2)(a), of the relationship of supervisor to a subordinate as being authority for the former to give a command to the latter as a matter of general service knowledge. [ 15 ] I have considered whether in the absence of any evidence of a custom of the service that would have authorized Lieutenant(

N) Meeker to give an order to Captain Duncan, I should nevertheless leave the issue to the panel of this General Court Martial to apply their own understanding of the relationship of workplace supervisor and subordinate in the Canadian Forces, and then apply that understanding to the particular facts that the panel may find from the evidence in this case, but I have concluded that my duty under

article 112.05, paragraph 13, is clear.

[16] Applying the law as set out in R v Charemski, (SCC), [1998] 1 S.C.R. 679 and R v Monteleone, (SCC), [1987] 2 S.C.R. 154, I conclude that there is no evidence in the present case that at the time of the instruction Lieutenant(N)Meeker was a superior officer in respect of Captain Duncan, and accordingly there is no prima facie case with respect to the first charge. Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant(

N) N. Han, Judge Advocate General/Director of Law Military Personnel Assistant counsel for Her Majesty the Queen Lieutenant(

N) K.M. Aubrey-Horvath, Judge Advocate General/Director of Law Operations Assistant counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Captain M.R. Duncan