R. v. Krajaefski, 2019 CM 4005

COURT MARTIAL Citation: R. v. Krajaefski , 2019 CM 4005 Date: 20190321 Docket: 201878 Standing Court Martial Asticou Courtroom Gatineau, Quebec, Canada Between: Her Majesty the Queen - and - Major T.A. Krajaefski, Accused Before: Commander J.B.M. Pelletier, M.J. Restriction on publication: Pursuant to

section 179 of the National Defence Act , the Court directs that any information obtained in relation to this trial by Standing Court Martial that could identify anyone described in these proceedings as a victim or complainant, including the person referred to in the charge sheet as “T.C.” shall not be published in any document or broadcasted or transmitted in any way.

REASONS FOR FINDINGS (Orally) Introduction [ 1 ] Major Krajaefski is facing two charges under sections 93 and 129 of the National Defence Act in relation to an incident involving one complainant, identified as “T.C.” on the charge sheet, which would have occurred on or about 8 June 2001 on a bus heading back to Canadian Forces Base (CFB) St-Jean following a celebratory outing in nearby Montreal. Both charges allege the same conduct, namely that Major Krajaefski “did touch T.C. in a sexual manner without her consent.” The evidence

[ 2 ] The prosecution called two witnesses. The first was T.C., the complainant, who described her background as an officer within the Cadet Instructor Cadre (CIC) organization, which she joined in June 1999. She described her career with the cadet movement over the last 20 years, consisting mainly of periods of full-time Class B Reserve service in duties associated with cadet administration and training, with a break of three years to pursue schooling. She has been on sick leave from these duties since September 2016, after having been diagnosed with post-traumatic stress disorder in June 2014.

She also described the training she received and the courses she attended, including the Junior Officer Leadership Course (JOLC) held in St-Jean, Quebec, over a period of approximately 21 days in end May, early June 2001. [ 3 ] T.C. provided basic details as to that course, which she took when she was an Air Force second lieutenant. Major Krajaefski was a member of the directing staff of the course as a lieutenant. He was one of three instructors specifically assigned to her flight of approximately 30 candidates.

She mentioned that in the last few days of the course, she participated in a social activity with her course mates and the course staff, consisting of an evening in bars in Montreal. The course travelled from St-Jean to and from Montreal in a school bus. She described visiting about three bars with some of her friends from the course and having drinks. Not able to recall how many drinks she had, she described her level of intoxication as “happy drunk”, meaning she would not be driving.

She did concede that many people on the bus during the return trip were quite drunk, including one person who urinated in a garbage can. The atmosphere on the bus at that point was festive and quite loud, especially as it pertained to a group of people near the front of the bus. [ 4 ] T.C. said she was sitting on her own on one seat on the left side of the bus, two thirds of the way towards the back. She said that at one point, Major Krajaefski came up from the forward portion of the bus to sit beside her.

They chatted for a while about the course, which was not unusual or unexpected given the social nature of the activity. However, at one point Major Krajaefski placed his hand on her thigh. She said she froze, being in shock at what was happening. Before she could do or say anything, he placed his hand on her crotch. At that point she quickly removed his hand. He then went back towards the front of the bus. [ 5 ] She said she continued chatting with the people in her vicinity as she did not want to say anything about what had just occurred.

However, she did keep an eye on Major Krajaefski at the front of the bus as she did not want him to come back her way. A few minutes later, Major Krajaefski once again made his way towards the back of the bus. When she noticed, T.C. repositioned herself in the middle of her seat so that the seat would be less inviting for anyone to sit beside her. Despite that attempt, Major Krajaefski once again sat next to her, shoving her towards the window. He placed his hand on her thigh a second time.

When she grabbed his hand to remove it from her thigh, he forcefully placed his hand on her crotch, this time pushing her into the seat with such force that she was unable to remove his hand or break free. She told him that she was not interested, that she had a boyfriend, but he replied to the effect, “You know you want it!” T.C. testified that the second contact lasted for one or two minutes.

At one point, a friend of hers, Major Adam Mobbs, intervened by leaning over towards them from behind, touching Major Krajaefski on the arm or shoulder, and saying something to the effect, “Is everything okay?” At that point, Major Krajaefski removed his hand and went back to the front of the bus, staying there for the remainder of the trip. [ 6 ] T.C. had no significant interaction with Major Krajaefski subsequently. The events of that evening stayed with her and she has what she described as “body memories” of the hand pushing on her crotch.

She said she spoke to people about the events at the time and believes a record was made as a result of two candidates having reported the incident. Although she did not report the incident herself, she was told that a note would be placed in Major Krajaefski’s file. In 2014 or early 2015, she contacted the Sexual Misconduct Response Centre, shortly after it had been set up, to inquire whether there was anything on Major Krajaefski’s file regarding the event.

She was referred to military police who investigated her allegations. [ 7 ] On cross-examination, T.C. was challenged about her recollection of events on the bus. She conceded having experienced memory issues as a result of her mental health challenges. She acknowledged that Major Mobbs is a close friend of hers but denied contacting him to find out details of what had happened that night. She was challenged about events of the evening and could not recall going to dinner, places and timings where she would have gone and details about her consumption of alcohol that night.

She denied having attempted to withhold information on a document attached to an affidavit filed in support of an application at the outset of the proceedings. She also denied that her allegations are fabricated to bolster her potential to obtain financial compensation as a result of a class action lawsuit targeting the Government of Canada, for the Canadian Forces’ failure to properly address complaints of sexual misconduct throughout the years. [ 8 ] The second witness for the prosecution was Major Adam Mobbs. He was also a candidate on the JOLC held in St-Jean in end May, early June 2001.

By that time, he had known T.C. for many years as she went to school with his brother. They had also been colleagues in the military, serving together for about five months in 140 Aurora Royal Canadian Air Cadet Squadron and having spent one summer together at CFB Borden. They have remained close friends. In his testimony, Major Mobbs provided additional details as to the JOLC and the end-of-course bus trip to Montreal. He said that from his recollection the group included all directing staff and students from the course.

He provided a sequence of events for the evening: first a dinner at an Italian restaurant with a bread bar, followed by a visit to a pub or bar specializing in French Canadian music. He testified that all participants stayed together throughout the evening as the purpose of the outing was to celebrate the end of the course and be exposed to French Canadian culture. Major Mobbs said he drank quite a bit that night and admitted having been intoxicated, as were many persons in the group. However, he could not recall on cross-

examination whether T.C. was intoxicated. [ 9 ] Describing the bus trip back to CFB St-Jean, he said he remembered that someone urinated on the bus. He also remembered T.C. and Major Krajaefski sitting on the same seat next to each other two or three rows behind him, although he could not recall if they were on the same side of the bus as he was. He could not recall if he had a conversation with T.C. during the return trip, however, he said that at one point he noticed T.C. and Major Krajaefski sitting unusually close together. He remembers thinking something seemed a little strange or odd.

When asked why he felt that something was strange, he answered that he did not remember what he saw that made him think that. He remembers being concerned for T.C. and directing an open-ended question towards her and Major Krajaefski along the lines of “Is everything okay?” He does not remember any answer to that question. He did not see any touching between T.C. and Major Krajaefski. He does not remember Major Krajaefski moving to or from his seat next to T.C. at any point and does not remember anyone else moving around in the bus.

As to his own movements, he said in direct examination that he could not remember if he stayed in his seat the entire return bus trip, including at the time he asked the question to T.C. and Major Krajaefski. On cross-examination he did acknowledge defence counsel’s suggestion that he had moved towards the seat where Major Krajaefski and T.C. were seated to address them. [ 10 ] Major Mobbs was also cross-examined on whether he had touched, pulled or grabbed Major Krajaefski at any point during the exchange.

His answer was negative, saying that such a physical contact by a student towards a member of the directing staff would be significant and he would remember it if it had occurred. He did agree with the suggestion that at the time he asked his open-ended question, if he had observed or been made aware of any problems with the situation between T.C. and Major Krajaefski, he would have done something about it. He acknowledged there must have been no cause for concern as he went back to his seat. [ 11 ] Major Mobbs said he had not spoken to Major Krajaefski about the events on the bus subsequently.

He was asked whether he had spoken about these events with members of the chain of command and could not remember if the discussions he had with supervisors at the end of the course went beyond the usual evaluation process. On cross-examination, Major Mobbs admitted that he told investigators in the summer of 2015 that he had received a call from T.C. during which she wanted to know what had happened that night on the bus.

Acknowledging what he said at the time, he testified that from his understanding T.C. had called him to ask if he remembered anything that from that night. [ 12 ] Major Krajaefski testified in his own defence. He summarized his career, both as a CIC officer from 1998 and, since 2005, as a logistics officer in the Regular Force. He spoke about the courses he took and those he taught over the years, including the one occasion when he taught the JOTC as a member of the directing staff in May to June 2001 in St-Jean, Quebec. He said he remembered this course, mainly because it did not end well for him.

He was returned to his unit as a result of finding himself in the company of a candidate in a room in the quarters on base, thereby breaching orders issued to prevent such close contacts between directing staff and candidates. The candidate involved in the incident was not T.C. He said that being returned to his unit was a humiliating experience and was made worse by the fact he did not know at the time that the person he was with was a candidate.

He recalled the approximate number of candidates on the JOLC, between 15 and 25 per flight, for a maximum total of 75 candidates on the course, being trained by nine members of the directing staff, with the addition of the Officer in Charge. [ 13 ] However, Major Krajaefski did not remember T.C. as a candidate on the JOLC. He does remember that the course took a bus trip to Montreal as part of a customary practice to celebrate the end of a course. He remembers the group staying together and that there was drinking going on but does not recall going to dinner or drinking alcohol himself.

However, he said that as an instructor he would not have had a large amount of alcohol given his responsibilities to supervise and keep things under control. The only recollection he has of the return trip is that it was boisterous and that a person urinated on the bus. He does not believe engaging in boisterous activities. He does not recall sitting beside T.C. but said it could have happened, for instance to exchange on the course as he tries to be firm, fair and friendly as an instructor. He denied engaging in the inappropriate sexual touching described by T.C. in her testimony.

He does not remember having been grabbed or touched by Major Mobbs or anyone else in the course of the bus trip, adding that he would remember if it had been the case. Issue [ 14 ] The element of identity has been conceded and the elements of time and place of the offences have been proven to the satisfaction of the Court given the margin of appreciation provided by the use of the words “on or about” and “at or near” in the description of these elements. In any event, they have not been contested.

Both parties agree that what is at issue on both charges is whether the conduct alleged, namely touching T.C. in a sexual manner without her consent, has been proven beyond a reasonable doubt. If I find that such conduct has been proven, the prosecution submits that both offences have been proven, meaning that the conduct proven as charged constitutes both disgraceful conduct and conduct to the prejudice of good order and discipline. I agree with that submission.

[15] The only issue is, therefore, whether the alleged conduct has been proven. As there were conflicting testimonies on that point,my assessment of the credibility of witnesses will be determinative in order to arrive at a finding on that question. I will thereforecommence my analysis by addressing the issue of credibility. Analysis Credibility analysis generally [16] The assessment of credibility turns on a myriad of considerations, some personal to the trial judge’s impressions born out ofexperience, logic and an intuitive sense of the matter. The Supreme Court of Canada (SCC) said in R. v.

R.E.M., 2008 SCC 51, that “itmay be difficult for a trial judge ‘to articulate with precision the complex intermingling of impressions that emerge after watching andlistening to witnesses and attempting to reconcile the various versions of events.’” Indeed, “assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization.” Yet, I will attempt to provide as complete explanations as Ican for my findings in this regard. [17] It is important to specify that the assessment of credibility is not a competition between T.C. and Major Krajaefski.

Thepurpose of this trial is not to determine if she wins her case against him. There is no case for her to win and whatever the outcome, she isno loser. This is Major Krajaefski’s trial and his trial only. What I need to do is determine whether the prosecution has proven its caseagainst Major Krajaefski beyond a reasonable doubt. As with any other accused, Major Krajaefski is presumed to be innocent right fromthe beginning of his court martial. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused.There is no burden on an accused to prove that he or she is innocent.

The standard of proof beyond a reasonable doubt is inextricablyintertwined with a principle fundamental to all criminal trials: the presumption of innocence. [18] As for the meaning of the expression “beyond a reasonable doubt,” the SCC, in R. v. Lifchus, (SCC), [1997]3 S.C.R. 320, tells us that a reasonable doubt is not an imaginary or frivolous doubt, and must not be based upon sympathy or prejudice.Rather, it is based on reason and common sense, and logically derived from the evidence or absence of evidence.

It is not sufficient forme, as the trier of fact, to believe the accused is probably guilty or likely guilty. In those circumstances, the accused must be given thebenefit of the doubt and acquitted because the prosecution has failed to satisfy me of the guilt of the accused beyond a reasonable doubt.On the other hand, I must keep in mind that it is virtually impossible to prove anything to an absolute certainty, and the prosecution is notrequired to do so. [19] The requirement of proof beyond a reasonable doubt applies to each and every essential element of the offence.

It does notapply to individual items of evidence. The court must decide, looking at the evidence as a whole, whether the prosecution has proved anaccused’s guilt beyond a reasonable doubt. [20] Reasonable doubt also applies to the issue of credibility. On any given point, the court may believe a witness, disbelieve awitness, or not be able to decide. The court need not fully believe or disbelieve one witness or a group of witnesses.

If I have a reasonabledoubt about Major Krajaefski’s guilt arising from the credibility of the witnesses, then I must find him not guilty. [21] This is especially relevant in this case where the credibility of conflicting accounts is at issue. The SCC has developed aframework to be applied in a context such as this one, in the case of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. Thatframework was described by Cory J. as follows: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] This framework was developed to prevent trial judges from committing the error of resolving these conflicting testimonial

cases on the basis of whom they were going to believe, the complainant or the accused. Indeed, the apparent logic of choosing between conflicting versions breaks down when the essential nature of a criminal trial is remembered. The ultimate function of the trial, in which the complainant is not a party, is to determine whether the prosecution can prove the specific allegation(

s) it has made beyond a reasonable doubt. The trial judge may well prefer a complainant’s narrative to the one offered by an accused, but that does not resolve whether he or she has a reasonable doubt about the accused’s guilt. This is because there are other options requiring acquittal, including the legitimate possibility of the judge being unable to resolve the conflicting evidence and, accordingly, being left in reasonable doubt. [ 23 ] Although the W.(D.) framework refers to analysis under the heading “credibility”, we must remember that this term refers to both credibility and reliability.

Testimony has credibility problems if the witness is intentionally offering, in whole or in part, false, exaggerated, or minimized information. In effect, credibility addresses whether the witness is lying. In contrast, reliability is about honest mistakes. Evidence has reliability problems if an honest witness is inadvertently offering inaccurate information. Credibility problems can arise because the witness is not a trustworthy person but generally, credibility problems are almost always contextual. In particular circumstances, witnesses may choose to offer a fabricated, exaggerated, or minimized account.

As with credibility problems, some reliability problems arise from a witness’s personal circumstances but are more commonly situational. [ 24 ] In evaluating credibility, I heed to the specific testimony offered and consider a number of factors, including the plausibility of the evidence, the presence of independent supporting or contradicting evidence, the external and internal consistency of the evidence and the “balance” of the evidence. The factors relevant in evaluating credibility can assist in making reliability conclusions.

Accounts most rationally trusted for their accuracy are plausible; consistent with what can confidently be known to be true; may even be supported by independent information; and the witness who provides that account will not have offered materially different versions on other occasions. [ 25 ] As agreed by the parties, the prosecution’s case depends on the acceptance of the version of T.C. as to the sexual touching that she testified Major Krajaefski engaged in without her consent.

Yet, as I explained, in performing my duties as judge, I must acquit if I am unable to resolve the conflicting evidence regardless of its source and I am left in reasonable doubt as a result. Reasonable doubt may also arise from the issues of credibility and reliability. It is not a judgement on the value of anyone. The ultimate decisions I have to make should not be seen as a dismissal of any witness’s version of the facts, let alone of the emotional difficulties that the events inflicted on him or her.

The credibility of the accused [ 26 ] Major Krajaefski testified in a straightforward manner, relating facts as he remembered them, a task rendered difficult in this case due to the passage of almost 18 years since the events. His task was arguably rendered easier by his claim that he had no memory and did not recognize T.C., as argued by the prosecutor. However, it is not inconceivable that an instructor has no memory of a course candidate after all of this time, especially if he has instructed numerous courses throughout his career. Major Krajaefski did not contradict himself and his evidence was consistent.

He readily admitted the possibility that he may have been sitting next to T.C. to chat on the return trip in the bus and explained why it is so in a credible way. He remembered part of that evening and the bus trip. He did not remember other aspects of it; however, he did deny having touched anyone in a sexual manner and denied having been touched, explaining why such extraordinary actions would be memorable if they had occurred. [ 27 ] Major Krajaefski did relate having been returned to his unit, a fact which did not reflect positively on him.

This incident was only vaguely explained and leaves me perplexed as to how the accused could have found himself in a room on base with someone whose status as a candidate he ignored. However, this question was not explored on cross-examination. The accused had put his good character in issue and I have to assume that if there was anything that could assist the court in assessing his credibility negatively resulting from that episode it would have been explored by the prosecution.

In fact, Major Krajaefski was not challenged on anything of substance during cross-examination and I conclude his evidence raised no plausibility concerns. [ 28 ] There is nothing in the substance of what Major Krajaefski testified about or in the manner in which he gave his evidence that would cause me to disbelieve his evidence. [ 29 ] However, this is not the end of the analysis. As noted in an

article by David M. Paciocco J.A., “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017), 22 Can. Crim. L. Rev . 31, the W.(D.) framework does not need to be applied by analytical sequence. Instead, the rules are numbered simply to demonstrate a list of the possible conclusions that a trial fact-finder can arrive at when considering evidence inconsistent with guilt.

Therefore, a proper application of the W.(D.) framework does not require me to decide whether I believe the exculpatory evidence of the accused, or if I am left in a reasonable doubt by it, before considering the sufficiency of the inculpatory evidence. In other words, I am not required to acquit if the exculpatory evidence cannot be rejected.

[30] In fact, evidence favourable to the accused is not to be assessed in isolation from the conflicting evidence offered by theprosecution. Even in applying the test of W.(D.), the evidence in a criminal trial must be considered as a whole. As a result, it ispermissible for a trial fact-finder to reject entirely the exculpatory evidence simply because of the imposing strength of the Crown’scase, even if no specific reasons can be articulated for why the accused’s evidence is disbelieved. [31] In R. v.

D. (J.J.R.), (2006) (ON CA), 215 C.C.C. (3d) 252, Doherty JA of the Ontario Court of Appealobserved, “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt ofthe truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on aproblem identified with the way the accused testified or the substance of the accused’s evidence.” [32] Yet, I cannot simply accept a complainant’s evidence as credible and consequently reject the evidence of an accused.

I need toaddress my mind to the third leg of the W.(D.) framework and question whether the evidence considered as a whole, including thecomplainant’s evidence, is compelling enough to remove all reasonable doubt. The credibility of inculpatory evidence must beparticularly impressive before that evidence can be credited beyond a reasonable doubt in the face of facially unassailable exculpatoryevidence.

If I arrive at such a conclusion, I am bound to demonstrate that I have not convicted simply because I prefer the inculpatoryversion. [33] I will now analyze the rest of the evidence, including T.C.’s version of the facts. The credibility of prosecution’s witnesses Major Mobbs [34] Both counsel suggested Major Mobbs was a highly credible witness. In large part, I agree.

He came across as a thoughtfulindividual who testified in a straightforward manner and made great efforts to remember details of events that occurred a long time ago.Even if he was able to complement his memory with common sense to offer convincing testimony on a number of issues, I note,however, that he often did not remember things in detail given the passage of time. T.C. [35] I have observed T.C. closely as she testified and have no reason to doubt her sincerity.

She impressed me with the calmmanner she displayed, even when discussing obviously troubling facts for her, which apparently contributed to the mental healthchallenges she became aware of later and led to a diagnosis of post-traumatic stress disorder. In testifying as she did and by remainingcalm throughout, she displayed extraordinary courage. [36] Yet, I have to act judicially. Distress and emotions by a witness are not indicators that the events related must be true.

I haveto look beyond that in analyzing credibility and reliability. [37] T.C.’s credibility was challenged in cross-examination mainly on two fronts: a motivation to lie to bolster an opportunity toobtain financial compensation as part of a class-action lawsuit she admitted joining and her actions in removing a page from a documentin support of an affidavit in the course of a preliminary application, the content of which having been incorporated in the main trial at therequest of the parties. [38] As it pertains to the class action suit, I note that a complainant in a criminal trial has every right to claim financialcompensation by other means.

The issue to be potentially concerned about is not the fact that compensation is sought but rather anymotivation to lie in the criminal trial itself, a legitimate area for a defence counsel to explore, as done here. That said, I have been entirelysatisfied with the explanations of T.C. which were left unchallenged by any other evidence. The issue of the missing page in thedocument attached to the affidavit is more worrisome.

The explanation to the effect that T.C. honestly thought it was not required leavesme perplexed as the personal information on that page was clearly relevant to the issues in the application, which was whether hertestimony would be facilitated by the presence of a service dog at her side while testifying in this trial. There are comments on that pageabout the provision of a therapy dog and the anxiety felt about the upcoming trial.

[ 39 ] That said, I am not prepared to conclude that T.C. purposely tried to mislead the court as it would have been very clear upon reading the two other pages of the document that a middle page was missing. If it was an attempt at misleading, it was a very poor one. [ 40 ] The main concerns I have with T.C.’s testimony relate to its reliability. Indeed, she admitted having memory problems as discussed in the medical information provided to the court as part of the application.

Her evidence as to the events of June 2001 is sketchy on many aspects, even if she was precise on the main events pertaining to the assaults she describes having experienced when Major Krajaefski placed one of his hands on her thigh and crotch on two occasions. Arguably, details are easier to forget than something as significant as having someone’s hand forced on one’s crotch. That acknowledged, even if memory lapses may relate to peripheral matters they can nevertheless be indicative of faulty memory of the events surrounding the alleged commission of the offences.

This may leave me with doubt about the reliability of her memory on the essential facts. [ 41 ] Significant for me is the difficulty she had in placing the bus trip to Montreal in context. For instance, she was unable to indicate when the bus would have left and what would have occurred before and after the arrival to Montreal. She is not sure whether participants went to the mess before leaving and testified that upon arriving in Montreal she went to bars with a few of her friends, suggesting they would walk in some place randomly for some drinks.

This evidence lacks plausibility in itself as it is difficult to understand how the Canadian Armed Forces would provide a bus at public expense to members of a course only to allow them to break out upon arrival and go bar-hopping in small groups or individually. The subsequent testimony of Major Mobbs laid out clearly the purpose of the trip and how it was conducted, as a celebratory event at the end or very near the end of a demanding course. It involved a dinner at a restaurant which makes perfect sense. It involved an outing in a typical French Canadian bar/pub also makes sense.

Both counsel agreed that Major Mobbs could offer reliable evidence on the events of that evening. Yet, T.C. could not remember being in a restaurant, with the entire group of her course mates and had no memory to offer on any of the approximately three bars she said she visited with friends. She did not offer details as to how everyone was to converge at one place and at a specific time for the return trip to St-Jean. That causes me concern about the reliability of her account of the events of that evening. [ 42 ] Corroboration of T.C.’s testimony is not, strictly speaking, required.

However, in deciding whether I am convinced beyond a reasonable doubt that the conduct alleged in the charges has been proven, I have to take into account any external discrepancies in her evidence in relation to other evidence I have heard. The presence of significant discrepancies which cannot be resolved or explained may ground a reasonable doubt on the credibility of T.C.’s evidence as the evidence considered as a whole must be compelling enough to remove all reasonable doubt.

Analysis of the evidence [ 43 ] It would appear that Major Mobbs was called by the prosecution to corroborate elements of the version of facts offered by T.C. Indeed, Major Mobbs has indicated that he observed Major Krajaefski and T.C. sitting quite close together on a seat on the bus trip back to Montreal. This evidence offers corroboration of part of T.C.’s narrative and may be the reason why the defence conceded the issue of identity.

It is important to note, however, that this corroboration as to seating is only partial; Major Mobbs did not remember Major Krajaefski moving back to and from that seat, contrary to T.C.’s testimony. In fact, he did not remember people moving much on the bus. [ 44 ] The prosecution also suggests Major Mobbs’ testimony corroborates T.C.’s version as it pertains to his intervention that stopped the second physical contact between Major Krajaefski and T.C.

I agree that there was a form of intervention in that Major Mobbs testified to having asked an open-ended question to the effect, “Is everything okay?” This is consistent with T.C.’s testimony. However, Major Mobbs was unable to testify about any effect his intervention might have had. What we know from his testimony is that whatever the answer, if any, to his question, he did feel everything was okay and went back to his seat without further action, something he said he would not have done if anything had been wrong.

As he is unable to explain what caused him to intervene, there is no corroboration that his intervention stopped anything. [ 45 ] The testimony of T.C. is also inconsistent with the rest of the evidence as it pertains to the nature and details relating to Major Mobbs’ intervention. T.C. said that her friend touched Major Krajaefski’s shoulder or arm and asked if everything was okay. In cross- examination, she said that Major Mobbs had “grabbed” or “pulled” Major Krajaefski.

This is inconsistent with Major Mobbs’ evidence, to the effect that as a student he would not have touched an instructor in that kind of situation and in any way that could be deemed offensive unless required by the events. He said that if he had done that, it is something he would remember. Therefore, it is his evidence that there was no touching involved in his interaction with Major Krajaefski. This evidence is consistent with the version offered by the accused. This discrepancy is not insignificant to me as it decreases the force or significance of the intervention that T.C. related in her testimony.

It causes me credibility concerns. [ 46 ] On the nature of the intervention, there is also a discrepancy as to where Major Mobbs came from when he intervened to stop what was happening between Major Krajaefski and T.C. Her evidence is that at the time of that intervention the accused’s hand was

pressed firmly on her crotch, she said Major Mobbs leaned over from somewhere behind. Yet, Major Mobbs’ evidence is that he was sitting two or three seats ahead of T.C. on the bus.

T.C. acknowledged on cross-examination that she could be mistaken as to the location from where the intervention came; however, the issue of location is not just one of detail, as it bears on what Major Mobbs may have heard or observed which would justify his intervention. [ 47 ] Indeed, the prosecution suggests that Major Mobbs’ testimony to the effect that he felt something was odd or strange about the situation between Major Krajaefski and T.C. corroborates T.C.’s testimony to the effect that Major Krajaefski’s hand was at that time firmly held against her crotch without her consent.

However, Major Mobbs was unable to describe what he had seen, heard or been made aware of that would have triggered the concern he said he felt. His location prior to his intervention may have an impact on inferences I could make about what he could have observed that triggered his concern. If he was leaning over from behind, it is possible that he heard words exchanged or saw the physical contact on the thigh and crotch, but made it more difficult to see the expression on T.C.’s face. If he is two seats ahead, he could see her face but not the physical contact.

In any event, the prosecution has asked me in argument to accept, on the strength of Major Mobbs’ testimony, that he was seated ahead. I agree that Major Mobbs’ testimony is more reliable than the testimony of T.C.; however, I am troubled by the way she related that her friend leaned over from behind as it strongly suggests that he intervened from a much closer range and could possibly have had a closer awareness of the physical contact and her struggle to remove Major Krajaefski’s hand as opposed to what Major Mobbs testified to.

Once again, this discrepancy is not insignificant to me as it decreases the significance of the intervention as related by T.C. in her testimony and causes me credibility concerns. [ 48 ] As it pertains to what happened, the prosecution in argument has asked me to infer that Major Mobbs, seated ahead, noticed T.C.’s face, which somewhat indicated she was at least uncomfortable with whatever was going on in the proximity of Major Krajaefski. He then asked an open-ended question which got Major Krajaefski to remove his hand and leave the seat, thereby resolving the situation.

This explains why there is no memory and no need to intervene further. [ 49 ] However, that proposed inference does not flow directly from the testimony of Major Mobbs and is inconsistent with the rest of the evidence. Major Mobbs does not know what triggered his concern. He did not even testify that his concern was the result of something he saw. Even if T.C.’s face was the only thing arguably visible from two or three seats ahead of her on the bus, I cannot ignore the evidence to the effect that it was night-time, in a dark school bus with no lights.

I have a doubt as to whether the facial expression of T.C. could be observed from such a distance, especially that she was sitting. I also have doubts that Major Mobbs could have confidence in his question being heard and answered from such a distance in a bus everyone said was noisy given the boisterous conduct by many drunk persons and possibly music being played. Then there is the fact that Major Mobbs said he could not remember anyone moving on the bus.

If events occurred as suggested by the prosecution, Major Krajaefski would have had to walk back towards the front of the bus just past Major Mobbs. [ 50 ] For its part, the defence indirectly suggested, by the nature of its cross-examination, that the only thing of concern that could be observed by Major Mobbs was that Major Krajaefski and T.C. were very close to each other on the seat, a situation that would have seemed strange or odd to Major Mobbs who admitted on cross-examination that an instructor and a candidate so close to each other would be a concern.

Yet, as Major Mobbs acknowledged in cross-examination, he got back to his seat without further action, hence he must have concluded nothing untoward was happening. That version is, in my view, reasonable and not contradicted by the evidence of Major Mobbs nor inconsistent with the rest of the evidence. [ 51 ] I am not required to make findings as to exactly what happened on that bus and I do not intend to do so.

I have mentioned these two conflicting versions of what might have occurred to illustrate the fact that the version of Major Mobbs is too imprecise to provide a clear picture of what might have happened and, more importantly, too imprecise to corroborate the version advanced by T.C. I cannot rely on hypotheses or conjectures. Inferences must flow directly from the facts. [ 52 ] In this case, as fact-finder, I am entitled to believe all, some or none of a witness’s evidence.

I am not prepared to dismiss T.C.’s version as being entirely not credible but I believe there are significant reliability and credibility concerns with some key parts of her testimony. Even if she appears to be an honest witness, any honest witness may give what is or may appear to be an implausible account for a variety of reasons.

The inaccuracies noted in her testimony by virtue of contradiction by other evidence may well be related to the reliability of her memory of the events and may denote honest errors. [ 53 ] However, the uncertainties relating to the reliability of the prosecution’s evidence make it impossible for me to reject entirely the exculpatory evidence heard from Major Krajaefski. Simply stated, the prosecution’s case is not compelling enough to remove all reasonable doubt on the issue to be decided given the credibility concerns I expressed as it pertains to the testimony of T.C.

This is not a case where the credibility of inculpatory evidence is so impressive as to be credited beyond a reasonable doubt in the face of facially unassailable exculpatory evidence. [ 54 ] I am therefore left with a reasonable doubt as to the conduct element in this case. For the reasons explained, I must conclude

that the prosecution has failed to discharge his burden to prove that Major Krajaefski did touch T.C. in a sexual manner without her consent. As this conduct is common to both charges before the court, the only acceptable outcome is an acquittal on all charges. FOR THESE REASONS, THE COURT: [ 55 ] FINDS Major Krajaefski not guilty of both charges. Counsel: The Director of Military Prosecutions as represented by Major G.J. Moorehead and Lieutenant(

N) G.J.M. Benoit-Gagné Mr D.M. Hodson, David Hodson Criminal Defence Law, 16 Lindsay Street North, Lindsay, Ontario, Counsel for Major T.A. Krajaefski