R v Danielsen, 2013 CM 3022

COURT MARTIAL Citation: R v Danielsen, 2013 CM 3022 Date: 20130912 Docket: 201323 Standing Court Martial Asticou Centre Gatineau, Québec, Canada Between: Her Majesty the Queen - and - Lieutenant(

N) W.R.D. Danielsen, Accused Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR FINDING (Orally) [ 1 ] Lieutenant(

N) Danielsen is charged with two alternative service offences under the National Defence Act . First, he is charged with an offence laid under

section 130 of the National Act for handling, without lawful excuse, a 9-millimetre pistol in a careless manner, and second with an offence laid under

section 129 of the National Defence Act for carelessly handling a loaded 9-millimetre pistol inside the dining facility. [ 2 ] The evidence is composed of the following elements: (

a) In order of appearance before the court, the testimony of Sergeant Mitchell, Sergeant Bolduc-Grenier, Master Corporal Benoit, Captain Jackson and Master Corporal Thompson, the latter being heard as a witness providing expert opinion evidence to the court; (

b) Exhibit 3, Admissions made by the accused pursuant to paragraph 37(

b) of the Military Rules of Evidence (MRE);

(

c) Exhibit 4, a copy of an email trail involving Lieutenant(

N) Danielsen, Captain Jackson and Sergeant Mitchell dated 2 and 9 August 2012; (

d) Exhibit 5, a copy of the Operating Instructions for Pistol 9-millimetre, Sig Sauer, Model P225 (C71-318-000/MB-001) issued on authority of the Chief of the Defence Staff and dated 1 June 2012; (

e) Exhibit 6, a copy of the resume of Master Corporal Thompson; and (

f) the judicial notice taken by the court of the facts in issue under Rule 15 of the Military Rules of Evidence, and more specifically the content of the publication C71-318-000/MB-001, Instructions for Pistol 9-millimetre, Sig Sauer, Model P225, issued on authority of the Chief of the Defence Staff. [ 3 ] From 3 March 2012 until his administrative repatriation from theatre on 11 August 2012, Lieutenant(

N) Danielsen was deployed to Kabul, Afghanistan, as the Director of the Field Security Group (FSG) at Camp Phoenix. During his deployment he was issued a 9-millimeter P225 Sig Sauer service pistol. [ 4 ] Camp Phoenix is a two square kilometre camp on which houses a multinational contingent composed of a large number of soldiers from several countries; such as, United States, France, Canada and Bulgaria. Also, headquarters and dining facility can be found on that camp.

There was only one dining facility (DFAC) on the camp where everyone from every nation would go to get a meal. [ 5 ] The DFAC was managed by American contractors and where local nationals would be employed. There were two entrances on either side of the building. The building was divided in two dinning halls of approximately of 3000 square feet. It could seat about 500 to 600 people. There were rows of tables and eight people could sit around each table. Opening hours were 6 to 9 a.m. for breakfast, 11 a.m. to 1 p.m. for lunch, and 4:30 to 6:30 p.m. for dinner. There was an access to evening meals up to midnight.

The DFAC was usually occupied from 65 to 75 percent of its capacity around 5 to 5:30 p.m. for dinner. [ 6 ] The weapon's state throughout the camp was loaded but not ready, which means that the magazine was on the rifle or of the pistol but there was no round in the weapon's chamber. However, a military police member was entitled to a force exemption card, according to the NATO Standing Orders, which allowed an MP to have his pistol loaded and ready, meaning that there would be a round in the chamber. [ 7 ] There was a clearing bay for weapons at both entrances of the DFAC.

Clearing bays were used to unload weapons in order to make weapons safe. However, there was no obligation to make a weapon safe when entering a building, except for the medical building, where you had to unload your weapon and hand it over. Soldiers were allowed to carry their weapons in the DFAC with the authorized weapons state and those who had a pistol would normally keep it in the holster. [ 8 ] Military police members were equipped with a pistol, 9-millimetre, Sig Sauer, Model P225.

It is a pistol with an eight round magazine and it's the military police service pistol. [ 9 ] On 2 August 2012, around 5 p.m. on that day, Sergeant Bolduc-Grenier went to the DFAC of Camp Phoenix with Master Corporal Benoit and Captain Jackson for dinner. He entered in the DFAC with his pistol loaded but not ready and placed in his holster. [ 10 ] Once he got his meal he went to a table with Master Corporal Benoit. He then asked Lieutenant(

N) Danielsen, who was already sitting there, if he could have a seat. Lieutenant(

N) Danielsen told him he could and Master Corporal Benoit and him sat at the table. They were joined few minutes later by Captain Jackson. [ 11 ] When he sat, Lieutenant(

N) Danielsen was sitting directly on his right on the same side of the table, Master Corporal Benoit was across the table, directly in front of him and Captain Jackson was sitting across the table, directly at the right of Master Corporal Benoit.

[12] What did trigger the incident has been described by witnesses in two different ways. Sergeant Bolduc-Grenier told the courtthat once he met Lieutenant(

N) Danielsen, he introduced him as an FSG's member. Lieutenant(

N) Danielsen was wearing civilianclothes and had long hair at that time. Not knowing exactly the meaning, Sergeant Bolduc-Grenier introduced the accused as Bill andidentified the acronym FSG as meaning “Fucking Silly Guys” or “Fucking Special Guys” as making a joke of it. Then, the subject cameon about the great number of “Negligent Discharge” or ND that had occurred during the last two weeks on camp. [13] According to Sergeant Bolduc-Grenier, it is while talking about ND that he felt something hard hitting his right knee, whichhe thought as being at first part of Lieutenant(

N) Danielsen's hand. He then had a look on his right and saw Lieutenant(

N) Danielsenholding his pistol out of his holster and thought at that point that it was maybe the pistol that hit his leg. [14] Master Corporal Benoit and Captain Jackson testified that to their opinion, it is shortly after the discussion of the meaning ofthe acronym of Lieutenant(

N) Danielsen's unit that the latter took out his pistol from his holster. From Captain Jackson's perspective,while Lieutenant(

N) Danielsen was drawing his pistol from his holster, he held it in a way that led him to think that the pistol waspointed at Sergeant Bolduc-Grenier, despite the fact that he couldn't see in what direction exactly the pistol was pointing at, because itwas under the table. [15] However, once he put out his pistol from under the table, Lieutenant(

N) Danielsen was pointing his weapon toward the floor. Acknowledging that there was a round in the chamber, he then removed the magazine and put it on the table, cocked his pistol, whichresulted in a round being ejected of it, put back the round in the magazine, put back the magazine in his pistol and placed it in his holster. [16] From Sergeant Bolduc-Grenier, Lieutenant(

N) Danielsen did that in order to demonstrate that it was easy to handle a weaponwhen it is done in a proper manner. From other witnesses' point of view, Lieutenant(

N) Danielsen did that in a joking and in a some wayarrogant manner to demonstrate how special his unit was. [17] All witnesses mentioned that they were surprised by this type of handling by a person in the DFAC. They were shocked andconcerned, however, nobody felt threatened for his own safety. Everybody finished their meal and left the place. [18] Further to that incident, Captain Jackson gave some thoughts about the fact to report it or not. The day after, he reported theincident to his superior. Witnesses were interviewed and Lieutenant(

N) Danielsen was administratively repatriated on 11 August 2012. [19] Lieutenant(

N) Danielsen's pistol, 9-millimetre, Sig Sauer, Model P225 was serviceable throughout the period he hadpossession of it, including at the time of the incident. [20] Before this court provides its legal analysis, it's appropriate to deal with the presumption of innocence and the standard ofproof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamental to all criminal trials.

Andthese principles, of course, are well known to counsel, but other people in this courtroom may well be less familiar with them. [21] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in our criminal law and theprinciple of proof beyond a reasonable doubt is an essential part of the presumption of innocence. In matters dealt with under the Codeof Service Discipline, as in cases dealt with under criminal law, every person charged with a criminal offence is presumed to be innocentuntil the prosecution proves his guilt beyond a reasonable doubt.

An accused person does not have to prove that he is innocent. It is upto the prosecution to prove its case on each element of the offence beyond a reasonable doubt. [22] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces ofevidence that make up the prosecution's case, but to the total body of evidence upon which the prosecution relies to prove guilt.

Theburden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to theaccused person. [23] A court must find an accused person not guilty if it has a reasonable doubt about his guilt or after having considered all of theevidence. The term "beyond a reasonable doubt" has been used for a very long time. It is part of our history and traditions of justice. InR v Lifchus (SCC), [1997] 3 SCR, 320, the Supreme Court of Canada proposed a model charge on reasonable doubt.

The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate courts subsequent decisions. Insubstance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt basedon reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells the court but alsoon what that evidence does not tell the court.

The fact that a person has been charged is no way indicative of his or her guilt and I willadd that the only charges that are faced by an accused person are those that appear on the charge sheet before a court. [24] In R v Starr 2000 SCC 40 , [2000] 2 SCR, 144, at paragraph 242, the Supreme Court held that: ... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than toproof on a balance of probabilities.... [25] On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty.

Theprosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has theburden of proving the guilt of an accused person, in this case, Lieutenant(

N) Danielsen, beyond a reasonable doubt. To put it inperspective, if the court is convinced or would have been convinced that the accused is probably or likely guilty, then the accused wouldhave been acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. [26] What is evidence?

Evidence may include testimony under oath or solemn affirmation before the court by witnesses aboutwhat they observed or what they did; it could be documents, photographs, maps or other items introduced by witnesses; the testimony ofexpert witnesses; formal admissions of facts by either the prosecution or the defence; and matters of which the court takes judicial notice. [27] It is not unusual that some evidence presented before the court may be contradictory. Often witnesses may have differentrecollections of events.

The court has to determine what evidence it finds credible. [28] Credibility is not synonymous with telling the truth and a lack of credibility is not synonymous with lying. Many factorsinfluence the court's assessment of the credibility of the testimony of a witness. For example, a court will assess a witness' opportunity toobserve; a witness' reasons to remember, like, were the events noteworthy, unusual and striking, or relatively unimportant and, therefore,understandably more difficult to recollect?

Does a witness have any interest in the outcome of the trial; that is, a reason to favour theprosecution or the defence, or is the witness impartial? This last factor applies in a somewhat different way to the accused. Even thoughit is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit aconclusion that an accused will lie where that accused chooses to testify. [29] Another factor in determining credibility is the apparent capacity of the witness to remember.

The demeanour of the witnesswhile testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward inhis or her answers or evasive, hesitant or argumentative? Finally, was the witness' testimony consistent with itself and with theuncontradicted facts? [30] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter.

It is always serious and it may well taint a witness' entire testimony. [31] The court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible.

However, a court will accept evidence as trustworthy unless there is a reason, rather, to disbelieve it. [32] Subsection 86(1) of the Criminal Code reads as follows: Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibitedweapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or withoutreasonable precautions for the safety of other persons. [33] The essential elements of handling, without lawful excuse, a 9-millimetre pistol in a carless manner are:

(

a) the identity of the accused as the author of the offence; (

b) the date and place of the offence as alleged in the particulars of the charge; (

c) the accused used a firearm; (

d) the accused used the firearm in a careless manner; and (

e) the accused had no lawful excuse for his use of the firearm. [ 34 ] A firearm is a gun, a weapon with a barrel that can fire a shot bullet or other projectile and can cause death or serious bodily injury to another person. [ 35 ] In order to prove that Lieutenant(

N) Danielsen used a firearm, the prosecutor does not have to prove that Lieutenant(

N) Danielsen fired the weapon, although to fire it is to use it. Nor does prosecutor have to prove that Lieutenant(

N) Danielsen injured or meant to hurt anybody. The weapon need not be loaded; nor pointed at anybody, although to point it at another person is to use it. [ 36 ] To satisfy this requirement, the prosecutor must prove beyond a reasonable doubt at least that Lieutenant(

N) Danielsen had a firearm with him, that he pulled it out and held it in his hand in some manner or other. No more is required, but nothing less will do. [ 37 ] The use of firearms is an activity that involves control over a thing that has the potential to cause serious harm to life and limb. The criminal law pays special attention to persons who have control over things like firearms. We expect those who voluntarily assume control over guns to act in a way that indicates respect for the inherent potential for harm of those firearms. [ 38 ] In order to determine if Lieutenant(

N) Danielsen used the firearm in a careless manner, the court is not required to decide what was in Lieutenant(

N) Danielsen's mind at the time he used the firearm. Carelessness is the absence of the required state of care. To determine this question, the court must look at what Lieutenant(

N) Danielsen did and did not do, how he did and did not do it, and what he said and did not say . [ 39 ] The court should consider all the circumstances, including any personal characteristics of Lieutenant(

N) Danielsen that deprive him of the capacity necessary to have the mental state of care required in the circumstances. [ 40 ] Careless use of a firearm involves conduct that shows a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances. If the court has a reasonable doubt that Lieutenant(

N) Danielsen's use of the firearm showed a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances, or that Lieutenant(

N) Danielsen took reasonable precautions to live up to that standard of care, this element has not been proven. [ 41 ] It is not always an offence to use a firearm in a careless manner. It is an offence, however, if the person who uses the firearm in that way has no lawful excuse for doing so. [ 42 ] A lawful excuse is an excuse that the law recognizes and for which it provides.

Conduct is excused, not because the law approves of it, but because the law does not treat it, in the circumstances, as a crime. [ 43 ] Concerning the second charge on the charge sheet, the particulars of that charge refers clearly to the concept of negligence by using the word “carelessly”, which refers to a failure to perform any duty imposed by law, practice or custom and of which the accused

knew or ought to have known. Then, the court takes this offence as being neglect to the prejudice to good order and discipline. [ 44 ]

Section 129 of the National Defence Act reads in part as follows:

(1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty's service or to less punishment.

(2) An act or omission constituting an offence under

section 72 or a contravention by any person of (

a) any of the provisions of this Act, (

b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or (

c) any general, garrison, unit, station, standing, local or other orders, is

an act, conduct, disorder or neglect to the prejudice of good order and discipline. [ 45 ] The essential elements of the offence of neglect to the prejudice to good order and discipline under

section 129 of the National Defence Act are: (

a) the identity of the accused as the offender; (

b) the date and place of the offence; (

c) the omission as alleged in the charge really occurred; (

d) that the omission amounted to a blameworthy negligence, which includes to prove that: (

i) there was a standard of care to be exercised by the accused; (ii) the omission of the accused was in relation with the standard of care; (iii) the omission of the accused breached the required standard of care; (iv) the omission of the accused amounted to a negligence, which means that the acts or omissions of the accused constituted a marked departure from the expected standard of care. (

e) the prejudice to good order and discipline, which includes to prove: (

i) the standard of conduct required;

(ii) the fact that the accused knew or ought to have known the standard of conduct required; and (iii) the fact that the omission of the accused amounted to a contravention of the standard ofconduct. [46] Concerning the essential element of neglect, this court has to find out if some evidence has been adduced by the prosecutionconcerning the conduct of the accused itself, which is the actus reus, and the requisite mental element of it, which is the mens rea. [47] First, the negligence concept under

section 129 of the National Defence Act must be addressed as a penal concept as I alreadystated in my decisions in R v Gardiner, 2008 CM 3021 and R v Nauss, 2013 CM 3008. Generally speaking, conduct which constitutes adeparture from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, unlikecivil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct.

Fundamental principles of military law justice require that the law on penal negligence concern itself not only with conduct that deviatesfrom the norm, but also with the offender's mental state.

As established in R v Beatty, 2008 SCC 5, at paragraph 7, the modify objectivetest established in R v Hundal, (SCC), [1993] 1 S.C.R. 867 remains the appropriate test to determine the requisite mensrea for negligence-based military service offences under the Code of Service Discipline. [48] Concerning the actus reus, it must be defined by the applicable standard and the fact that the conduct of the accused did notrespect it. [49] Concerning the mens rea for negligence under

section 129 of the National Defence Act, the remarks of the Supremes Court ofCanada decision in R v Beatty, 2008 SCC 5, at paragraphs 48 and 49 are very relevant to this case. Further to a reading of thoseparagraphs, I still conclude, as I did in Gardiner and Nauss, that for an offence of negligence under

section 129 of the National DefenceAct, it is only necessary to establish an objective mens rea and a subjective one is not necessary in order to prove this offence. [50] The prosecution is taking the position that once Lieutenant(

N) Danielsen took out his pistol from his holster, he carelesslyused his weapon because he did so in the dining room, which is not an appropriate location to do such thing, and in presence of manypeople.

The prosecution is taking the view that the only place he could have taken out his pistol to take out the round in a safety mannerwas at the clearing bay located at both entrances of the DFAC. [51] Concerning the prejudice to good order and discipline for the second charge, the prosecution submitted that the court mayinfer from the evidence and also as a matter of logic that by doing what he did with his weapon in an inappropriate location, such as thedining facility on the camp, with so many people present at the time, prejudice to good order and discipline has been proved beyond areasonable doubt by the prosecution. [52] The accused is of the opinion that the prosecution failed to prove beyond a reasonable doubt that he carelessly used hisweapon on both charges.

Moreover, he takes the view that the prejudice to good order and discipline has not been proven because thereis no evidence on the applicable standard of conduct. [53] Through the testimony of Sergeant, Bolduc-Grenier, Master Corporal Benoit and Captain Jackson, the prosecution hasestablished in an undisputed manner and beyond a reasonable doubt, some essential elements of both charges: (

a) the identity, the date and place on both charges; (

b) that Lieutenant(

N) Danielsen used a weapon concerning the first charge and that he handled a loaded 9-millimetre pistolinside the dining facility as alleged in the second charge; and (

c) that Lieutenant(

N) Danielsen had no lawful excuse for his use of the firearm concerning the first charge.

[ 54 ] Then, the court is left with some essential elements to determine on both charges. Concerning the first charge, the court must determine if the prosecution has proven beyond a reasonable doubt that Lieutenant(

N) Danielsen used the firearm in a careless manner. [ 55 ] About the second charge, the court shall consider if the prosecution has proven beyond a reasonable doubt that the handling of a loaded 9-millimetre pistol inside the dining facility by Lieutenant(

N) Danielsen amounted to a blameworthy negligence and that such action constituted a prejudice to good order and discipline. [ 56 ] Firstly, did Lieutenant(

N) Danielsen use the firearm in a careless manner? In order to make a decision on this issue, the court shall determine two things: first, what is the standard of care that a reasonably prudent person would exercise in the same circumstances; and, second, if Lieutenant(

N) Danielsen's conduct showed a marked departure from that standard of care. [ 57 ] Evidence has established that soldiers on Camp Phoenix would generally access the DFAC while carrying their weapon with them. They were personally responsible for the status and handling of their weapon.

There was no requirement to unload or take safety precautions prior to entering the DFAC despite the fact that there was a clearing bay at both entrances. [ 58 ] Generally speaking, status of weapons on Camp Phoenix was loaded and not ready, meaning that there was a magazine on the weapon but there was no round in the weapon's chamber. However, military police members had an exemption and could carry their weapon loaded and ready, which meant that there was a magazine on the weapon and a round in the weapon's chamber. Lieutenant(

N) Danielsen was authorized to do so. [ 59 ] In such operational military environment located overseas, what would then be the standard of care that a reasonably prudent person would exercise while handling his or her weapon in the DFAC? The evidence is silent on this very issue. Witnesses did not mention anything about what were the directions or expectations in such circumstances. It is true that through witnesses, the court got the idea that the behaviour disclosed by Lieutenant(

N) Danielsen in the DFAC during dinner of 2 August 2012 was unusual, surprising and to some point, shocking. But no evidence was adduced about the reasons why it was qualified in that way by witnesses and what were the normal expectations in such circumstances to allow the court to make a conclusion about the standard of care that a reasonably prudent person would exercise while handling his or her weapon in the DFAC.

The only suggestion made by the prosecutor to the court was to make a logic inference that in such circumstances, as described by prosecution's witnesses, a reasonable person would not take out, at any time, his or her weapon in the DFAC.

Difficult assumption for the court to make with the evidence before it. [ 60 ] However, if for a moment, the court assumes that the standard of care that a reasonably prudent person would exercise while handling his or her pistol in the DFAC would be not to take it out from the holster in any circumstances, or in circumstances authorized by law such as defending himself while being under enemy fire or any other legal reason authorizing such use, then did Lieutenant(

N) Danielsen's conduct show a marked departure from that standard of care? [ 61 ] No matter what was the nature of the conversation going on at the time Lieutenant(

N) Danielsen took out his pistol from his holster, by doing so, his conduct was a departure from the standard of care. However, it is also clear from the evidence that he held it, controlled it and carried something very similar to safety precautions, knowing the danger that doing such thing may include.

Clearly, he cared about his actions, knowing that his weapon constituted a danger in these circumstances. [ 62 ] For sure, as Master Corporal Thompson told the court, because of the very nature of the safety mechanisms of the Sig Saur, the fact that a round would have been fired was almost inexistent but the risk can never be reduced to zero. As agreed by this witness, the handler of the weapon is the best safety precaution when things are done properly. [ 63 ] What Lieutenant(

N) Danielsen did, was an inappropriate thing to do in such circumstances. As mentioned by witnesses, nobody felt threatened or in danger, as they continued what they were doing at the time, but they were very concerned by the unusual behaviour they faced. [ 64 ] It is true that Lieutenant(

N) Danielsen seemed not very concerned by his actions, in the sense that he clearly told witnesses that he could not be sent home for doing such a thing with his pistol or his knife. However, he showed that he was concerned by the safety of others when he manipulated his pistol. The court would like to point out that at any given time he did not point his pistol toward a person. It is true that Captain Jackson presumed that Lieutenant(

N) Danielsen may have pointed at the legs of Sergeant Bolduc-Grenier, but he did not see the pistol and Lieutenant(

N) Danielsen's hand that was hidden under the table. Lieutenant(

N) Danielsen may have done so but it is not sufficient for the court to make such conclusion beyond a reasonable doubt. [ 65 ] It was suggested by prosecution that pointing at the floor was not pointing in a safe direction. In order for the court to make that conclusion, it would have been necessary for the prosecution to adduce some evidence to that effect. Pointing at the floor is not pointing at somebody, and absent of any evidence to conclude differently, the court is concluding that Lieutenant(

N) Danielsen was pointing his pistol in a safe direction, as confirmed by prosecution's witnesses. [ 66 ] The court would like to add that the prosecution has failed to demonstrate the existence of an intimidating or threatening environment at the time the alleged offence was committed. It is true that Lieutenant(

N) Danielsen was arrogant, but witnesses who attended the scene were adamant that he was not trying to intimidate anybody. [ 67 ] Consequently, having regard to the evidence as a whole concerning this essential element of the offence, it is the conclusion of this court that the prosecution has not proved beyond a reasonable doubt a careless use of a firearm by Lieutenant(

N) Danielsen contrary to

section 86 of the Criminal Code . [ 68 ] Now, about the second charge, and more specifically about the handling of a loaded 9-millimetre pistol inside the dining facility by Lieutenant(

N) Danielsen which amounted to a blameworthy negligence, comments made previously by the court to determine if Lieutenant(

N) Danielsen handled in a careless manner his pistol must receive full application. Comments are the same and the conclusion is the same concerning this essential element of the offence about the offence of negligence to the prejudice of good order and discipline. [ 69 ] Finally, concerning specifically the prejudice to good order and discipline, the prosecution has not proved beyond a reasonable doubt the standard of conduct applicable in the circumstances. The prosecution would like the court to apply some kind of logic. However, it does not work this way.

It would have been necessary for the prosecution to establish beyond a reasonable doubt the applicable standard of conduct. If the court would have concluded that it was the case, it seems clear to the court that the prosecution failed to establish if such standard of conduct was known or had to be known by Lieutenant(

N) Danielsen. Clearly, on that aspect, there was no evidence whatsoever to that effect. [ 70 ] It is the conclusion of the court, having regard to the evidence as a whole, that the prosecution has not proved beyond a reasonable doubt that the omission of Lieutenant(

N) Danielsen amounted to a blameworthy negligence and that this omission constituted a prejudice to good order and discipline. [ 71 ] Consequently, having regard to the evidence as a whole, the prosecution has not proved beyond a reasonable doubt all the essential elements of handling, without lawful excuse, a 9-millimetre pistol in a carless manner contrary to

section 86 of the Criminal Code , and carelessly handling a loaded 9-millimetre pistol inside the dining facility contrary to

section 129 of the National Defence Act . FOR THESE REASONS, THE COURT: [ 72 ] FINDS Lieutenant(

N) Danielsen not guilty of the first and second charge on the charge sheet. Counsel: Major J.E. Carrier, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major S. A. Reid and Major S. Collins, Directorate of Defence Counsel Services Counsel for Lieutenant(

N) W.R.D. Danielsen