R v Penner, 2013 CM 1007

COURT MARTIAL Citation: R v Penner , 2013 CM 1007 Date: 20130605 Docket: 201281 General Court Martial Canadian Forces Base Esquimalt British Columbia, Canada Between: Ex-Ordinary Seaman C.G. Penner, Applicant - and - Her Majesty the Queen Before: Colonel M. Dutil, C.M.J. DECISION RESPECTING A MOTION BY THE DEFENCE THAT NO PRIMA FACIE CASE HAS BEEN MADE OUT AGAINST THE ACCUSED ON ALL CHARGES (Orally) INTRODUCTION [ 1 ] Counsel for the accused has presented a motion that no prima facie case has been made out against him on all charges before this General Court Martial.

Ex-Ordinary Seaman Penner, as it appears on the charge sheet at Exhibit 2, was charged with having committed three offences, namely one offence under paragraph 125(

a) of the National Defence Act ; one offence under

section 129 of the National Defence Act ; and one offence under

section 90 of the National Defence Act. ANALYSIS [ 2 ] A motion of no prima facie serves to determine whether there is evidence, direct or circumstantial, upon which a judge or a military panel, as would a jury in a criminal case, could reasonably convict and whether the prosecution has presented some evidence

against the accused on each essential element of an offence charged. At this stage, the judge is not concerned with whether there isevidence beyond a reasonable doubt and it is not the judge's role to weigh the quality of the evidence, assess the credibility of thewitnesses or the reliability of the evidence. These matters are rightfully within the role and functions of the court martial panel to decide.

Although the judge must not weigh the evidence as to the guilt of the accused, he or she is allowed to do it in a fairly limited matter inorder to determine whether there is "sufficient evidence to permit a properly instructed jury to reasonably convict" (R v Charemski, (SCC), [1998] 1 S.C.R 679). [3] In cases such as this one where the prosecution relies on direct and circumstantial evidence, the judge would use the limitedweighing of the evidence to determine whether a reasonable court martial panel, properly instructed, could return a finding of guilty on aspecific charge.

A finding of not guilty will be entered only where there is no evidence capable of supporting such a guilty finding. Inother words, this would apply generally when the prosecution has presented no evidence with regard to an essential element of anoffence. First Charge,

section 125(

a) of the National Defence Act [4] The first charge is laid under

section 125 of the National Defence Act. Its paragraph (

a) provides, in part: 125. Every person who (

a) wilfully or negligently makes a false statement or entry in a document made or signed by that person and required for officialpurposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof, … is guilty of an offence .... [5] The particulars of that first charge read as follows: "In that he, on or about 19 June 2012, at or near Canadian Forces Base Esquimalt, British Columbia, signed a document indicating hewas married on 6 June 2012, knowing that statement to be false." [6] In order to pass the threshold of no prima facie with regard to this first charge, the prosecution must present evidence thatex-Ordinary Seaman Penner is the person who committed the offence on the date and in the place described in that charge.

In addition,the prosecution must provide evidence on each of the following essential elements : 1. a false statement in a document; 2. that ex-Ordinary Seaman Penner signed that document; 3. that the document was required for official purposes; and finally 4. the blameworthy state of mind of the accused as characterized in the particulars, namely wilfulness with respect to thefalsity of the statement made.

Is there evidence that there is a false statement in a document? [7] Without weighing the probative value and reliability of Exhibit 3-1 which purports to be a statement of marriage issued on 13June 2012 by Mr Iain Hooey, who testified at trial, to the effect that a marriage was performed between Terri Margaret Francis andCaleb Gordon Penner, the court finds that this is evidence that these two persons married that day. [8] The prosecution's theory is to the effect that the false statement is contained in Exhibit 3-2 and would relate to the first line ofinformation, namely, "Date of marriage: 06 June 2012".

This document is silent with regard to the identity of the spouse, but aninference could be made that it would be the person mentioned in the document in evidence at Exhibit 3-1. I do not accept the argumentof defence counsel that this document serves only to validate what Mr Penner had said to Leading Seaman Sinclair on 18 June 2013 andthat any false or incorrect information contained in it could not constitute a false statement. Exhibit 4 indicates that Mr. Penner signedthat document that the "above information is true and accurate".

The court is satisfied that this is some evidence to the essential elementthat there is a false statement in a document. Is there evidence that ex-Ordinary Seaman Penner signed that document? [9] Exhibit 4 answers that question in the affirmative. Was that the document required for an official purpose? [10] This element has to do with the requirement about the specific nature of the document. This offence is not aimed at any type

of document. The document shall be one that was required for an official purpose. The classes of documents contemplated by

section 125 of the National Defence Act are those which an officer or non-commissioned member submits either as part of his military duty or because he desires to obtain some benefit or advantage permitted by regulations or orders, and the benefit or advantage is obtainable only after completion of prescribed documents. [ 11 ] The prosecution relies on the evidence of Lieutenant (

N) Bowditch who was the chaplain at Canadian Forces Fleet School at Canadian Forces Base Esquimalt during the events that led to the charges before this court, in order to establish the purpose of the document that is found at Exhibit 3-2 and which is the basis for the first charge. She testified on her role as a chaplain in the context of recommending that a member of the school be granted compassionate leave or compassionate travel assistance on a case by case basis. She indicated that she would meet with the member and that she would normally write a memo that would go on the member's file.

She also testified that she would also make some contact at the place where the leave would occur. [ 12 ] Lieutenant (

N) Bowditch testified that Mr. Penner gave her the document entered as Exhibit 3-1, the statement of marriage. However, she stated in cross-examination that she never knew about the document which would contain the false statement signed by the accused, allegedly Exhibit 3-2, until defence counsel emailed it to her two weeks ago. She stated that she did not write a memo to the chain of command concerning that request for compassionate leave and provided her reasons as to why she did not do it.

Her testimony does not provide any evidence that she asked for the document at Exhibit 3-2 or that such a document was required from a person in order to submit her memo to the chain of command. [ 13 ] In these circumstances, there is no evidence before this court as to any official purpose as contemplated by

section 125 of the National Defence Act . The testimony of Petty Officer 1st Class McCrae indicates that he knew of the document and that it was in kept by Leading Seaman Sinclair who was the accused's supervisor at the time. The plain reading of this document does not support the inference that this document was required for an official purpose such as the approval of compassionate leave or travel assistance that would have been managed by Lieutenant (

N) Bowditch. [ 14 ] Even if the information with regard to the date of the marriage would be false because ex-Ordinary Seaman Penner would only have married on 13 June 2012 as opposed to 6 June 2012, the information contained in Exhibit 3-2 purports to a medical issue of a person that had a miscarriage for which the accused would have been informed on 18 June 2012. There is no evidence before the court to the very purpose of the document or who asked for this document and it cannot be inferred from the testimony of the chaplain.

This document resembles an unofficial confession made to a person in authority, in order to obtain evidence against him, which is not a document of the category contemplated by

section 125 of the Act . [ 15 ] For these reasons, I find that no prima facie case has been made out with regard to the first charge. Second Charge,

section 129 of the National Defence Act [ 16 ] The second charge is laid under

section 129 of the National Defence Act for the offence of prejudicing good order and discipline. For our purposes, the relevant portions of

section 129 of the Act read as follows: 129.

(1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence ....

(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. [ 17 ] The particulars of that second charge read as follows: "In that he, on or about 22 June 2012, permitted Ms. Terri-Margaret Francis to access his room at 171 Nelles Block, Canadian Forces Base Esquimalt, British Columbia, outside visiting hours contrary to Canadian Forces Base Esquimalt Single Quarters Standing Orders paragraphs 50 and 51." [ 18 ] The prosecution had to provide evidence that ex-Ordinary Seaman Penner is the person who committed the offence on the date and in the place described in that charge.

In addition, the prosecution must bring evidence from which a panel reasonably instructed would convict, with regard to the following additional elements:

1. that ex-Ordinary Seaman Penner committed the act alleged in the charge; 2. that the consequence of the proven act is prejudicial to good order and discipline; 3. the blameworthy state of mind of ex-Ordinary Seaman Penner. Did ex- Ordinary Seaman Penner commit the act alleged in the charge? [ 19 ] It is alleged in the second charge that ex-Ordinary Seaman Penner permitted Ms Terri-Margaret Francis to access his room at 171, Nelles Block, Canadian Forces Base Esquimalt, British Columbia, outside visiting hours. [ 20 ] There is several components to this essential element.

First, the prosecution must prove that the lady found in the room 171, Nelles Block, Canadian Forces Base Esquimalt, British Columbia, was Mrs Terri-Margaret Francis. Also, it requires evidence that she accessed that room and that she did it outside visiting hours. The court concludes that the testimonies of Petty Officer 1st Class McCrae, Lieutenant-Commander Thaler and Chief Petty Officer 2nd Class Living established that the lady had accessed the room and that she was outside the visiting hours contemplated by paragraphs 50 and 51 of Exhibit 3-7.

The testimonies of Petty Officer 1st Class McCrae and Lieutenant-Commander Thaler provide also evidence that the content of Exhibit 3-7 was notified to the accused. [ 21 ] The evidence indicates that when the persons are living-in, they are told to read the single quarters orders and that they signed such a statement on arrival. In addition, Exhibits 5 and 6 were admitted by consent.

These documents indicate that the person who signed this document, ex-Ordinary Seaman Penner, acknowledged paragraph 3 to the effect that, "All personnel occupying quarters are responsible for reading Single Quarters Standing Orders for their building." This constitutes some evidence of notification. [ 22 ] The defence argued that there is no evidence before the court that Exhibit 3-7 was identified by a witness, therefore no evidence that the content of such a document would be proven. I disagree. This order was entered as an exhibit during this trial. It is proof of its content.

There is also evidence from Lieutenant-Commander Thaler that the single quarters regulations are posted on the notice board located at the entrance of Nelles Block and that residents are required to read them. This evidence is related to the issue of knowledge of the accused of the single quarters regulations at Nelles Block. [ 23 ] The prosecution relies on the testimonies of the same witnesses to establish that the accused permitted access to Mrs Francis, including her hearsay statement to Chief Petty Officer 2nd Class Living where she would have identified herself to him as Terri-Margaret Francis.

I will address this question first. The statement of a hearsay declarant not called as a witness may be admissible when it meets sufficient conditions as to necessity and reliability. The prosecution submits that this statement establishes the identity of Mrs Francis and that it is admissible because Exhibit 3-1 (statement of marriage) proves that she is the spouse of ex-Ordinary Seaman Penner and could not be compelled by the prosecution.

It is fair to say that testimonial incompetence does not prevent the admission of statements by a spouse to a third party that can qualify under the general necessity/reliability hearsay exception. Necessity is always established by the fact that the person is not competent to testify ( R. v. Phan , [2000] O.J. No. 2223 (Ont. C.J.) ). [ 24 ] The issue as to whether the accused "permitted access" to his room is critical as it relates to the second charge.

To establish that ex-Ordinary Seaman Penner permitted access to Mrs Francis, the prosecution relies on the testimony of the same witnesses that were conducting the inspection that day in the room allocated to the accused at Nelles Block.

In particular, the prosecution points to the fact that she had the key to the room; that the key was retrieved from her; and that only one key to that room was issued to the accused. [ 25 ] With respect, I do not believe that a "permission to access" by the accused could be reasonably inferred from that circumstantial evidence, even if blended with the direct evidence admitted at trial and that a court martial panel would be reasonably capable to infer guilt from that evidence. [ 26 ] I do not find that this evidence supports the conclusion asked by the prosecution that this evidence would lead to the only reasonable conclusion to be drawn from the whole of the evidence.

Based on the same evidence, a reasonable

interpretation could be that the lady found in the room, after having taken the key from her supposed husband, accessed his room on her own in order to surprise him after the working hours and without his knowledge about it or that she had decided to quietly wait in his room until he returned from work later that day. The fact that she was hiding in a closet and appeared very nervous, when discovered by the persons conducting the inspection and the fact that some female clothing was in the room are relevant evidence to permit the inference of trespassing and evidence of her state of mind.

She was not supposed to be there and she knew it. It is not sufficient circumstantial evidence to support the inference sought by the prosecution to the effect that the accused permitted her to access the room at that time. Therefore, I conclude that no prima facie case has been made out with regard to the second charge. Third Charge,

section 90 of the National Defence Act [ 27 ] The third charge is laid under

section 90 of the National Defence Act for the offence of absence without leave. The relevant portions of

section 90 of the Act read as follows: 90.

(1) Every person who absents himself without leave is guilty of an offence .…

(2) A person absents himself without leave who (

a) without authority leaves his place of duty;

(

b) without authority is absent from his place of duty; or (

c) having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized. [ 28 ] The particulars of the third charge read as follows: "In that he, at 1200 hours, 3 July 2012, without authority was absent from Canadian Forces Fleet School, Canadian Forces Base Esquimalt, British Columbia, and remained absent until 0630 hours, 6 July 2012." [ 29 ] The prosecution shall prove that ex-Ordinary Seaman Penner is the person who committed the offence on the date and in the place described in the third charge, within the timeframe indicated in the particulars, and the following essential elements: 1. that ex-Ordinary Seaman Penner had an obligation to be at a given place, at a given time; 2. that ex-Ordinary Seaman Penner failed or omitted to be there; 3. that ex-Ordinary Seaman Penner lacked authority for doing so; and 4. that ex-Ordinary Seaman Penner knew of the existence of the obligation imposed on him. [ 30 ] Did ex-Ordinary Seaman Penner have an obligation to be at a given place, at a given time? [ 31 ] It is alleged in the particulars of the third charge that ex-Ordinary Seaman Penner had an obligation or duty to be at Canadian Forces Fleet School, Canadian Forces Base Esquimalt, British Columbia, at 1200 hours on 3 July 2012. [ 32 ] The evidence of Lieutenant-Commander Thaler, Petty Officer 1st Class McCrae and the document filed as Exhibit 3-4 (CF Leave Authorization Request-CF 100) seem to indicate that ex-Ordinary Seaman Penner had authorized and approved leave from the period starting 23 June 2012 to 2 July 2012 inclusive.

The prosecution submits that the evidence also clearly indicates, through the testimonies of the same persons, that the accused was not authorized or granted additional leave beyond that date. [ 33 ] The defence suggests that the evidence of Petty Officer 1st Class McCrae is to the effect also, as revealed by his answers in cross-examination, that the accused would have received further instruction by him as to when to report for duty, when they both spoke in a telephone conversation at approximately 1600 hours on 2 July 2012.

Counsel for the defence rightly pointed out that the evidence does not provide any element as to what those further instructions were. During the cross-examination, Petty Officer 1st Class McCrae stated the following: "Q. Now, Petty Officer, likewise, when I'm asking you questions, I don't want you to advise what anybody else said to you. I just want to know what your actions or your comments were. A. Yes, sir. Q. Now, in your examination-in-chief, you refer to the fact that you received a phone call from Ordinary Seaman Penner. Do you recall what date that phone call was? A.

It was—I believe it was the 2nd of July. Q. Okay. And do you recall the time of day? A. I think it was—well, I’ll just think for a second, sir. Q. If you can't recall, please don't guess. A. It was in the evening. Like not like mid-evening, like, 1600ish, somewhere in there. Actually it would have been a little bit later, based on the circumstances of the phone call, sir. Q. And are you certain that it was on the 2nd or is there a possibility it could have been on the 1st? A. No, it wasn’t on the 1st, sir. No, it was definitely on the 2nd. Q. And how do you recall the date at this stage? A.

I recall the date because he was due back on the Monday and there’s—the reason why he called was because … Q. No, I don’t want you to get into what he said, which would be the reason. A. I was going — okay. Yes, sir. Q. So what day of the week was it that your received this call? Do you recall? A. It was on the weekend, sir. It was at my home. Q. Okay. So it was on the weekend prior to the Monday that he was supposed to show up for work? A. Yes, sir. Q. Okay.

Now, as a result of information that you became aware of during that telephone call, did you give Mr Penner instructions on a later date to report to the school? A. The next day, sir, yeah. Q. Now, over the next couple of days, there is a few communications between yourself and Mr Penner. Is that correct? A. No, sir. Q. That was your only communication with Mr Penner while he was away? A. Just that day. Just that day, sir. Q. Okay. And you didn’t speak to Mr Penner again prior to his reporting back for work? A. Oh, yes, I did, sir.

Q. Okay. A. It was—yes. Q. And as a result of those subsequent communications, there was further instruction given regarding when he was to appear? A. Yes, sir. Thank you, those are all my questions." [ 34 ] I am satisfied that the testimonies of Lieutenant-Commander Thaler and Petty Officer 1st Class McCrae tend to establish that ex-Ordinary Seaman Penner had an obligation or duty to be at Canadian Forces Fleet School, Canadian Forces Base Esquimalt, British Columbia, on 3 July 2012. The subsequent communications between the accused and his supervisor McCrae are not related to this element.

Did ex- Ordinary Seaman Penner fail or omit to be there? [ 35 ] The same evidence seems to support the affirmation that ex-Ordinary Seaman Penner was not present at his place of duty on 3 July 2012. Did ex- Ordinary Seaman Penner lack authority for doing so? [ 36 ] Counsel for the defence submits that the prosecution failed to present evidence on this essential element and that the testimony of Petty Officer 1st Class McCrae tends to establish that in fact ex-Ordinary Seaman Penner had been authorized not to present himself before the 6th of July 2012.

In my view, the testimony of Petty Officer 1st Class McCrae is not conclusive as to whether he authorized ex-Ordinary Seaman Penner to be absent from his place of duty between the whole period between 3 July until he finally reported for duty on 6 July 2012. It is not for the trial judge to weigh and consider the quality or the frailties of that evidence. The evaluation of that evidence is within the exclusive domain of the court martial panel.

Did ex- Ordinary Seaman Penner know of the existence of the obligation imposed on him? [ 37 ] The prosecution does not have to establish beyond a reasonable doubt that ex-Ordinary Seaman Penner had a specific intent to commit the offence. This appreciation must be left to the court martial panel based on the totality of the evidence that they will accept. [ 38 ] For all these reasons, I conclude that the prosecution has established a prima facie case with regard to the third charge.

DISPOSITION FOR THESE REASONS, THE COURT: [ 39 ] FINDS the accused, ex-Ordinary Seaman Penner, not guilty of the first charge of wilfully made a false statement in a document signed by him that was required for an official purpose contrary to paragraph 125(

a) of the National Defence Act. [ 40 ] FINDS the accused, ex-Ordinary Seaman Penner, not guilty of the second charge for conduct prejudicing good order and discipline contrary to

section 129 of the National Defence Act. [ 41 ] DIRECTS that the trial proceed on the third charge for the offence of absence without leave contrary to

section 90 of the National Defence Act. Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for ex-Ordinary Seaman C.G. Penner