R v Tomczyk, 2011 CM 4022

COURT MARTIAL Citation: R v Tomczyk, 2011 CM 4022 Date: 20110908 Docket: 201123 General Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Bombardier N. Tomczyk, Accused Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR AN APPLICATION – NON-PRIMA FACIE CASE (Orally) [ 1 ] The accused, Bombardier Tomczyk, is charged with having disobeyed the lawful command of a superior officer and conduct to the prejudice to good order and discipline.

More specifically, he is accused of not presenting himself for treatment at the Base Medical Clinic, as ordered by Captain Fraser on or about 23 September 2010. The accused has argued pursuant to paragraph 112.05(13) of the Queen's Regulations and Orders for the Canadian Forces that a non - prima facie case has been made out in respect of both charges. The accused requests that the presiding military judge pronounce the accused not guilty on both charges. Counsel for the accused also requested the presiding judge answer two questions of law should the motion for non- prima facie be dismissed.

These questions are: was the order lawful and was Captain Fraser a superior officer. The prosecutor submits he has provided evidence on each element of the offences and that the case must be presented to the trier of fact, the panel of the General Court Martial. [ 2 ] The question to be asked by a military judge considering a defence motion for a non- prima facie case is, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty" (see United States of America v.

Shephard , [1997] 2 SCR 1067, at p. 1080) or as expressed at paragraph 26 of R v Arcuri , 2001 SCC 54 whether "there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction."

[ 3 ] The nature of the judge's task varies according to the type of evidence that the prosecutor has advanced. Where the prosecution's case is based entirely on direct evidence, the judge's task is straightforward.

It is for the jury, the panel in our case, to say whether and how far the evidence is to be believed (see Shephard , at pages 1086 and 1087.) If the judge determines that the prosecutor has presented direct evidence as to every element of the offence charged, the judge's task is complete; the trial of the accused must continue. (see Arcuri , para 22 ) An absence of evidence on an essential element will result in a directed acquittal. (see R v Charemski , [1998] 1 SCR 678 at para 22 ) [ 4 ] As stated by the Supreme Court of Canada, the judge's task is somewhat more complicated where the prosecution has not presented direct evidence as to every element of the offence.

The question then becomes whether the elements of the offence to which the prosecution has not advanced direct evidence may reasonably be inferred from the circumstantial evidence. Answering this question requires the judge to engage in a limited weighing of the evidence. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the prosecution asks the panel to draw. This weighing, however, is limited. The judge does not ask whether he himself would conclude that the accused is guilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. (see Arcuri , para 23 ) This task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence (see Arcuri , para 30 ). [ 5 ] The first offence, disobedience of a lawful command, is charged under

section 83 of the National Defence Act . The prosecution must prove each of the essential elements of this offence beyond a reasonable doubt. These elements of the offence are: (

a) the identity of the Bombardier Tomczyk as the alleged offender, (

b) the date and place of the commission of the offence, (

c) that an order was given to Bombardier Tomczyk, (

d) that it was a lawful order, (

e) that Bombardier Tomczyk received or knew of the order, (

f) that the order was given by a superior officer, (

g) that Bombardier Tomczyk was aware of that officer's status, (

h) that Bombardier Tomczyk did not comply with the order, and (

i) the blameworthy state of mind of the accused. [ 6 ] The identity, the date and the place of the offence are not in issue in these proceedings. The next question is: Is there any evidence an order was given to Bombardier Tomczyk? The prosecutor argued Captain Fraser testified she ordered Bombardier Tomczyk to report to the Base Medical Clinic in Petawawa during his HLTA. He did not argue the order could be inferred from other evidence. [ 7 ] During her examination-in-chief, Captain Fraser testified she advised Bombardier Tomczyk of the required follow-up.

Exhibit 4, an email sent by Captain Fraser to Major Rodgman at 2 Field Ambulance in Petawawa on 27 September 2010 indicates she "told him to follow up at sick parade". During her cross-examination, she explained that, as a doctor, she cannot order a patient to take medications or to attend any referrals. She gave Bombardier Tomczyk directions on what to do medically to be fit for duties. She advised Bombardier Tomczyk to go to sick parade. As a doctor, she gives advice as to follow-ups. She agreed with defence counsel that an advice can be rejected or accepted by the person receiving the advice.

She agreed with defence counsel that she had not ordered him to go to the base medical clinic. She did state that she routinely gives orders to her subordinates in a clinical setting.

[ 8 ] The offence set out in

section 83 of the National Defence Act is particular to the military world and reflects the fact that obedience to orders is a fundamental rule of military life (see Corporal Liwjy v R , 2010 CMAC 6 , para 22 ). [ 9 ] The terms "command" and "order" are not defined in the National Defence Act and in the QR&Os. The Concise Oxford Dictionary defines "order" as "an authoritative command or direction, a verbal or written request for something to be made, supplied, or served". The Concise Oxford Dictionary defines "command" as "an authoritative order".

Article 19.015 of the QR&O provides that "Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer." The particulars of this charge allege that Bombardier Tomczyk was ordered to present himself to the Base Medical Clinic. Their

definitions, their use in QR&Os and in decisions of the Court Martial Appeal Court of Canada and of courts martial clearly indicate these terms are synonymous and it is a waste of the court's time to attempt to define these two terms otherwise. [ 10 ] The prosecution's evidence on this essential element of the offence is mostly the testimony of Captain Fraser and Exhibit 4. Captain Fraser has clearly stated she did not order Bombardier Tomczyk to report to the Base Medical Clinic in Petawawa. I find there is an absence of evidence on this essential element of this offence. [ 11 ] The second offence charged under

section 129 of the National Defence Act . The particulars read as follows: "In that he, between 24 September and 18 October 2010, at or near Canadian Forces Base Peawawa, Petawawa, Ontario, failed to present himself for treatment at the Base Medical Clinic, as prescribed by his treating physician, Captain Fraser, on or about 23 September 2010." [ 12 ] The prosecution must prove each essential elements of this offence beyond a reasonable doubt. These elements of the offence are: (

a) the identity of Bombardier Tomczyk as the alleged offender, (

b) the date and place of the commission of the offence, (

c) that Bombardier Tomczyk failed to present himself for treatment at the Base Medical Clinic, (

d) that Captain Fraser had prescribed the treatment on or about 23 September 2010, (

e) that Captain Fraser was Bombardier Tomczyk's treating physician, and (

f) the prejudice to good order and discipline resulting from the conduct. [ 13 ] Defence counsel argues there is no evidence before this court pertaining to the prejudice to good order and discipline caused by the alleged conduct of Bombardier Tomczyk. When asked by the court whether there was any direct evidence on that issue, the prosecutor indicated there was none. The prosecutor argued the prejudice could be inferred from the fact that Bombardier Tomczyk did not return to Patrol Base Shoja after his HLTA.

The prosecutor argued the patrol base was short one person and while, there was no evidence on that issue, this was one of the possible logical conclusions. [ 14 ] As I've mentioned it previously, I must weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the prosecution asks to the panel to draw. This weighing is limited. I do not ask whether I would conclude that the accused is guilty. Nor do I draw factual inferences or assess credibility. I may only ask whether the evidence, if believed, could reasonably support an inference of guilt.

This task is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[ 15 ] The accused's underlying conduct, his failure to present himself for treatment at the Base Medical Clinic as prescribed, must be prejudicial to good order and discipline. There must be proof of prejudice to good order and discipline. Proof of prejudice can be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. The standard of proof is proof beyond a reasonable doubt (see Sergeant B.K. Jones v R , 2002 CMAC 11 , paras 5 and 7 ). Prejudice is not defined in the Queen's Regulations and Orders or in the National Defence Act . In the context of a charge laid under

section 129 of the National Defence Act , the definition of prejudice is as follows "harm or injury that results from some action or judgement."(see Jones at paras 11 and 12 ) [ 16 ] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established in the trial. It is a conclusion that may, not must, be drawn in the circumstances. It does not change the burden of proof or the standard of proof of any party to the proceedings. An inference is a much stronger kind of belief than conjecture or speculation.

If there are no proven facts from which an inference can be logically drawn, it is impossible to draw an inference; at best one would be speculating or guessing. An accused must not be convicted on a guess. [ 17 ] The prosecutor submits there are three types of prejudice as a consequence of Bombardier Tomczyk's failure to present himself for treatment at the Base Medical Clinic as prescribed by his treating physician. Firstly, the prejudice to good and discipline at Patrol Base Shoja since it was missing one person because of the absence of Bombardier Tomczyk.

Secondly, the general prejudice resulting from the fact that Bombardier Tomczyk re-deployed at Afghanistan while he was unfit for duties and lastly, the added burden to the Kandahar Airfield medical system. [ 18 ] The prosecutor wishes the panel to draw these inferences. What is the evidence that clearly points to prejudice as a natural consequence of the proven act?

In other words, there must be some evidence before the court that can be used to infer that the prejudice to good order and discipline is a natural consequence of the Bombardier Tomczyk's failure to present himself for treatment at the Base Medical Clinic as prescribed by his treating physician. [ 19 ] Exhibit 5, the agreed facts, indicates Bombardier Tomczyk did not return to Patrol Base Shoja after his return from HLTA because of his injury. Exhibit 5 also states that Bombardier Tomczyk was repatriated on medical grounds on 19 November 2010, approximately two weeks before his deployment was scheduled to end.

There is no other evidence before this court pertaining to Patrol Base Shoja or the impact of his absence on his unit or on operations. Therefore, I conclude there is no evidence before this court reasonably capable of supporting the inference of prejudice at Patrol Base Shoja. [ 20 ] Captain Fraser advised Bombardier Tomczyk to report to the Base Medical Clinic in Petawawa because it was her opinion he had to be assessed for on-going treatment during his HLTA. She was not sure his medical condition would permit him to return to theatre.

Bombardier Tomczyk did not attend the Base Medical Clinic while he was on HLTA. Captain Fraser testified it was not possible that Bombardier Tomczyk would have recovered at 100 per cent from the time she last saw him in KAF and his arrival in Petawawa for his HLTA and that he not have to present himself to sick parade. She also testified she tried to arrange follow-ups during periods of HLTA to lessen the strain on medical resources in theatre. [ 21 ] Bombardier Tomczyk returned to KAF on 17 October and Captain Fraser saw him on 19 October.

She could not testify as to his medical condition on 17 October, only his condition on 19 October. She also testified it was possible he could have aggravated his injury in KAF after his return from HLTA.

She could not know how he would have been assessed in Petawawa and agreed it was possible his injury could have been assessed as healing well. [ 22 ] The prosecutor would thus have the panel conclude from the evidence that Bombardier Tomczyk intentionally did not report to the Base Medical Clinic because he knew he was injured, that he did not report because he believed he would not be allowed to return to Afghanistan and that he was injured when he returned to Afghanistan.

The prosecutor also argues that the failure to report to the Base Medical Clinic as prescribed resulted in an additional burden to the theatre medical resources and that prejudice to good order and discipline is the natural consequence of this conduct.

The obvious consequence of not reporting to the Base Medical Clinic is that Bombardier Tomczyk could not be assessed by a medical doctor to determine the extent of his neck injury, recommend possible treatments, manage his case and provide whatever information to his chain of command concerning his status and its impact on his possible return to Afghanistan. [ 23 ] The prosecutor also argues that the Canadian Forces must deploy to a theatre of operation only troops that are fit for duty and that hiding one's medical condition from the Canadian Forces will hinder this objective and one can infer that such conduct is prejudicial to good order and discipline.

He relies on the spirit of CFAO such as CFAO 34-14 and 20-50 to base this assertion. The court has taken judicial notice of these CFAOs under Military Rule of Evidence 15.

[ 24 ] It is evident that Bombardier Tomczyk was injured before his departure for HLTA, that his injury prevented him from returning to Patrol Base Shoja after his return from HLTA and that he was repatriated to Canada on medical grounds approximately two weeks before his deployment was scheduled to end.

Captain Fraser has provided evidence pertaining to his injury before he left for his HLTA and upon his return from HLTA as well as a statement by Bombardier Tomczyk that could be assessed by the panel and then used to infer that prejudice to good order and discipline is a natural consequence of Bombardier Tomczyk's conduct. FOR THESE REASONS, THE COURT: [ 25 ] FINDS that a no prima facie case has been made out in respect of charge number 1. AND [ 26 ] PRONOUNCES you not guilty of charge number one. AND [ 27 ] FINDS that a prima facie case has been made out in respect of charge number two.

AND [ 28 ] DIRECTS that the trial proceed on that charge. [ 29 ] These proceedings under paragraph 13 or

article 112.05 of the Queen's Regulations and Orders are terminated. Counsel: Major E. Carrier, Director of Military Prosecutions Counsel for Her Majesty the Queen Major S. Collins, Directorate of Defence Counsel Services Counsel for Bombardier N. Tomczyk