R. v. Palmer, 2021 CM 5004

HEARING BEFORE A MILITARY JUDGE Citation: R. v. Palmer , 2021 CM 5004 Date: 20210319 Docket: 202044 Preliminary Proceedings Asticou Courtroom Gatineau, Quebec, Canada Between: Corporal J.E. Palmer, Applicant - and - Her Majesty the Queen, Respondent Before: Commander C.J. Deschênes, M.J. DECISION REGARDING AN APPLICATION FOR FURTHER PARTICULARS PURSUANT TO

SECTION 187 OF THE NATIONAL DEFENCE ACT (Orally) Introduction [ 1 ] Corporal Palmer is facing three charges laid under

section 130 of the National Defence Act ( NDA ), that is to say, sexual assault contrary to

section 271 of the Criminal Code . These charges were preferred on 1 October 2020. The first charge alleges that the sexual assault took place on or between 1 and 30 November 2018 at Ottawa, Ontario, while the other two charges allege that a sexual assault was committed respectively on or between 21 December 2018 and on or between 25 June 2019 at Ottawa, Ontario. The applicant contends that the first charge requires further particulars regarding the exact date of the one transaction that formed the basis of the alleged sexual assault.

He also contends that, had a specific place in Ottawa been part of the particulars of the first charge, he may have been sufficiently informed of the case before him. He seeks the date, the approximate time and a more specific location of the alleged sexual assault. Citing R. v. McMillan , 2016 YKCA 10 , the applicant alleges that the exact date is paramount to the determination of whether a defence of alibi could be mounted.

The respondent contends that the particulars of the first charge provide sufficient information, and that full disclosure was provided in September 2020, guaranteeing the applicant his right to make full answer and defence.

Background [ 2 ] On 27 January 2021, counsel for Corporal Palmer filed a notice of application for further particulars with the Court Martial Administrator. The notice indicated that Corporal Palmer would make an application pursuant to

section 187 of the NDA and

article 112.03 of the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) to a military judge assigned to hear this application at the earliest date possible prior to setting the matter for trial. [ 3 ] On 1 February 2021, I was assigned by Deputy Chief Military Judge Lieutenant-Colonel d’Auteuil to hear the application. The hearing of the application was held at the Asticou Centre on Monday, 8 March 2021. The applicant’s court martial has yet to be convened. The evidence [ 4 ] At the hearing, the applicant introduced his notice of application with the charge sheet as an annex.

The respondent introduced his response to the notice of request for further particulars, dated 11 February 2021. During his submissions, the respondent confirmed that full disclosure was provided to the applicant on 9 September 2020. Both counsel also confirmed during the hearing that collaborative discussions took place previously in order to satisfy the applicant’s request. However, the respondent explained that the additional details sought by the defence could not be provided, as this information is not known.

The issue [ 5 ] In the case at bar, the issue is whether the underlying transaction contained in the first charge is identified in sufficient detail to permit the applicant to make full answer and defence. In other words, do the date and place as particularized in the first charge, formulated as: “ on or between 1 and 30 November 2018 at Ottawa, Ontario” provide sufficient detail for the accused to know the case before him in the circumstances? The law [ 6 ] Paragraph 11(

a) of the Charter guarantees any person charged with an offence the right “to be informed without unreasonable delay of the specific offence.” This ensures that an accused person is informed of the accusation against them, so their right to make full answer and defence is duly protected.

Section 581 of the Criminal Code provides for the minimum requirements for the sufficiency of information that should be contained in the charge. Similarly,

article 107.04 of the QR&O sets out the requirements pertaining to the preparation of a charge under the purview of the Code of Service Discipline, particularly at paragraph 3:

(3) Every statement of the particulars of an offence must include sufficient details to enable the accused to be reasonably informed of the offence alleged and thereby able to properly defend the matter (see

section 2 – Service Offences of

Chapter 103 – Service Offences). [ 7 ] Paragraph 4 adds additional requirements not specifically provided for at

section 581 of the Criminal Code , which rather refers to “sufficient detail of the circumstances of the alleged offence”:

(4) A statement of the particulars of an offence should, when practical , include an allegation of the place, date and time of the alleged commission of the offence. [Emphasis added.] [ 8 ] Note (

B) of

article 107.04 provides guidance in support of these requirements: If the actual date or time is not certain, the date or time of the alleged commission of the offence may be described as “on or about”, “on a day between” two limiting dates,[…] Care should be taken to make as close an estimate as the circumstances permit.

[9]

Section 581 of the Criminal Code provides for similar requirements in the criminal justice system. Although the QR&Oprovision prevails in the context of the military justice system, the jurisprudence related to similar provisions can provide usefulguidance or context to courts martial or military judges in the exercise of their judicial capacity. Indeed, the Supreme Court of Canada(SCC) decision Brodie v. the King, (SCC), [1936] S.C.R. 188, was the driving force behind subsequent amendments tothe predecessor of

section 581 of the Criminal Code. In this decision, which the applicant relies heavily in his submissions, the SCCruled that “the so-called indictment” of seditious conspiracy contained substance defects pertaining to the description of the offenceitself, since it failed to lift it from the general to the particular. [10] Much later, the SCC in R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, stated: [S]ince Brodie, there has been an increased tendency for the courts, including this Court, to reject insufficiency arguments on the basisthat they are overly technical and an unnecessary holdover from earlier times. [11] Interestingly, in Brodie, the SCC did not express concerns with the particulars of the contentious charge as they related to thetime and place, the latter referred to as: [D]uring the months of September and October […] at the city of Quebec, in the district of Quebec, and elsewhere in the province ofQuebec. [12] As mentioned in R. v.

Saunders, (SCC), [1990] 1 S.C.R. 1020, “[t]he fundamental requirement that thecharge must provide sufficient particulars to reasonably permit the accused to identify the specific transaction may be met in a variety ofways”. This implies that the determination pertaining to whether a charge contains sufficient particulars as to lift it from the general tothe particular requires a case-by-case analysis. In R. v.

Douglas, (SCC), [1991] 1 S.C.R. 301, the SCC confirms that thesufficiency of notice is examined based on the nature of the offence charged, and on the circumstances surrounding the allegedcommission of the infraction. [13] The charge should provide reasonable information to enable the accused to identify the transaction that forms the basis of theaccusation against him or her.

It is well established that this principle does not impose on the Crown a specific obligation to provide thetime of the alleged infraction with exact precision “unless it is an essential part of the offence charged and the accused is not misled orprejudiced by any variation in time that arises”.

The SCC added at page 314 of this decision: As well, it can generally be said that a charge has been established if the evidence discloses the commission of the offence within thetime period set out in the indictment. [Emphasis added.] [14] Consequently, the applicable constitutional and statutory principles related to the sufficiency of the particulars to be providedin a charge do not impose on the prosecution an obligation to provide the exact date, time and place in every case.

The infraction ofabsence without leave is a good example where the exact date will be required, and in some instances, the time should be included,particularly if the alleged absence was of short duration. [15] In the context of sexual assault cases in particular, the SCC found in B. (G.) that, having regard to the nature of the offencecharged and the age of the victim, who was nine years old at the time, and because the place, the identity of the victim and the offencealleged to have been committed were all being clearly identified in the information, the range of dates provided in the charge constitutedsufficient details.

Analysis [16] Unlike the cases provided by the applicant such as R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45, the substance of the chargein the case at bar as it pertains to the act itself is not contentious. The accusation is one of sexual assault.

Combined with the nature ofthe charge, the reference to the complainant by initials, the place and the relative short time period particularized in the charge, andconsidering counsel’s submissions as to the information contained in the disclosure, it is apparent that the information contained in thefirst charge is compliant with the legal requirements established by law, particularly as it relates to the requirements of

article 107.04 of

the QR&O and the guidance contained at Note B of this article. [ 17 ] Through his counsel, the applicant has confirmed that he is not only aware of the identity of the complainant, explaining at the hearing that Corporal Palmer and the complainant were serving or working together during the time period particularized in the first charge, he admitted that they had several interactions in Ottawa during the time period as alleged in the charge. Furthermore, the prosecutor explained that the exact date of the alleged sexual assault was unknown, otherwise it would have been provided to the applicant.

In these circumstances, the date of the alleged commission of the offence was appropriately described as “on a day between” two limiting dates, being between 1 and 30 November 2018 which covers a fairly short period of time. [ 18 ] As a result, looking at the particulars as a whole, and coupled with the submissions of counsel that included additional information pertaining to the content of the disclosure, I am satisfied that, as drafted, the first charge meets the requirements of the QR&O.

In other words, the first charge gives the applicant reasonable notice of the offence charged. [ 19 ] The applicant contended that, in order to make full answer and defence and determine whether a defence of alibi could be mounted, he requires the exact date and the approximate time. He based this argument on McMillan , a case which can easily be distinguished from this case. Mr. McMillan faced a drug trafficking charge particularized for a specific date in Whitehorse, Yukon. The Crown’s case was circumstantial.

At the outset and throughout the trial, it was clear to all concerned that the time and place of the offence were of significant importance from the defence perspective. In these circumstances, the trial judge found there was no evidence upon which to conclude beyond a reasonable doubt that Mr McMillan had ever been in Yukon prior to the proceedings. As a result, he was acquitted of the charge.

On appeal, the Court established at paragraph 23 that: [t]ime and place are not ordinarily considered essential elements of an offence, however, they will be when they are necessary for the accused to identify the factual transaction which forms the basis of the offence in question. For example, time or place will be essential where “there is a paucity of other factual information available with which to identify the transaction”. [ 20 ] The Court also stated that: [25] Specifics are critical to the defence when the accused relies on them to defend the charge as particularised.

If there is a variance between the details specified in the count and the evidence at trial, the accused may be misled as to the alleged transaction that he or she must address. [ 21 ] The applicant has failed to demonstrate that the exact date was critical to his defence. Corporal Palmer is facing three sexual assault charges allegedly committed on the same complainant, someone he served or worked with during the alleged time that extends from 1 November 2018 to 25 June 2019.

Unlike McMillan , there is no indication that the nature of the accusation, or the facts of the case as demonstrated by the evidence produced during the hearing of this application, support the argument that the exact date and place are critical to the defence’s case. On the contrary, the mention of the possibility of an alibi, being Corporal Palmer not being present at a specific date during the period particularized in the first charge, seems quite remote. [ 22 ] He admitted he had interactions with the complainant during this period, which counters his potential alibi claim.

He is facing two additional charges of the same nature against the same complainant, and did not suggest that an alibi will be put forward for these two charges which provide exact dates. The exact dates for charges 2 and 3 were particularized in the charges because they are known to the prosecution.

The contention of the remote possibility of an alibi is, in the circumstances, not sufficient to impose on the respondent the obligation to provide additional information pertaining to the exact date. [ 23 ] The SCC came to a similar conclusion in B. (G.) and stated at page 53: Had the trial judge directed himself to the first question, he would have been forced to conclude that time was not an essential element of the offence or crucial to the defence. Indeed, the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed.

From the record in this case it is also clear that the date of the offence was not crucial to the defence. The appellants' claim on appeal that the date was crucial because alibi evidence was led cannot, in my view, be seriously maintained. Conclusion

[ 24 ] Imposing on the prosecution to provide the exact date when it is unknown and when it is not critical to the defence to make full answer and defence would make it nearly impossible for the Crown to meet its burden of proof since it is required to provide every essential element of the offence as particularized in the charge. Indeed, the jurisprudence, as highlighted, does not hold the Crown to provide that level of detail in all cases. This issue is very much case-dependent.

Accordingly, since the applicant failed to establish that he is prejudiced in his defence by the absence of mention of the exact date in the particulars of the charge, I am satisfied that the first charge as particularized gives the applicant reasonable notice of the offence charged in the circumstances, allowing him to make full answer and defence. FOR THESE REASONS, I [ 25 ] DISMISS the application for further particulars raised by the applicant. Counsel: Lieutenant Commander É. Léveillé, Defence Counsel Services, Counsel for Corporal J.E.

Palmer, the Applicant The Director of Military Prosecutions as represented by Major C.R. Gallant, Counsel for the Respondent