R. v. Whitehead, 2016 CM 3002

COURT MARTIAL Citation: R. v. Whitehead , 2016 CM 3002 Date: 20160114 Docket : 201425 Standing Court Martial Royal Military College of Canada Kingston, Ontario, Canada Between: Her Majesty the Queen - and - Officer Cadet A.R. Whitehead, Accused Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. Restriction on Publication: By court order, pursuant to

section 179 of the National Defence Act and

section 486.4 of the Criminal Code of Canada , directs that any information that could identify the persons described during these proceedings as the complainants shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR THE DECISION ON SIMILAR FACT EVIDENCE (Orally) [ 1 ] The prosecution wishes to rely on the evidence provided by one complainant relating to one count of sexual assault to assist in proving an allegation of the exact same nature in a separate count involving a different complainant, that the accused committed that crime on another occasion, and it would like to do it for both charges on the charge sheet. [ 2 ] More specifically, it would like the trier of fact adjudicating one count to use the discreditable misconduct by the accused on the other count, and reciprocally. [ 3 ] In order to do so, the trial judge should, therefore, apply the similar fact evidence test to decide whether the evidence can be used in this way in the context of a multi-counts trial, which justifies the prosecution in presenting a notice of application to that effect. [ 4 ] Evidence adduced solely to show that the accused is the s ort of person likely to have committed an offence is, as a rule,

inadmissible. In common law, admissibility of similar fact evidence depends on whether, in the particular circumstances of the case, its probative value outweighs the prejudicial effect. The more morally repugnant the evidence shows the accused to be, the higher its prejudicial effect - requiring increased probative value for admission. [ 5 ] The current regime before a court martial for determining the admissibility of similar fact evidence is set out at

article 22 of the Military Rules of Evidence (MRE) and it reads as follows:

(1) If it has been established that the act referred to in the charge was done by someone, but the state of mind or identity of the actor is in doubt, the prosecutor may, subject to subsections (2) and (3), introduce evidence of another act or other acts of the accused similar in essential respects to the act charged, where either or both of the following facts are in issue and the evidence tends to prove one or both of them: (

a) that the state of mind of the accused was wrongful as charged at the material time, that is, that he did the act charged either knowingly, or with wrongful intent, motive or purpose; or (

b) that there has been no mistake in the identity of the accused as being the person who did the act charged.

(2) When attempting to prove the charge against the accused, the prosecutor shall establish a real suspicion of the guilt of the accused on issues of state of mind or identity with evidence other than that of essentially similar acts of the accused, before he may introduce evidence of essentially similar acts of the accused.

(3) Although the prosecutor has evidence to offer within subsections (1) and (2), the judge advocate shall exclude that evidence if he decides that its probative value is slight or that it would have an undue tendency to arouse prejudice against the accused, thereby impairing the fairness of the trial. [ 6 ] In the decision by the Court Martial Appeal Court (CMAC) in R. v. Laflamme , CMAC-342, issued in 1993, Judge Hugessen, on behalf of the court, clearly stated that considering Military Rules of Evidence are the rules of evidence for a court martial and that they were adopted pursuant to

section 181 of the National Defence Act , they must be applied as a statutory requirement despite any anomaly or the fact that they deviate from the common law. In these circumstances, this court has no other choice then to apply

section 22 of the MRE. [ 7 ] In addition, from a constitutional perspective, one of the rights of the accused is to a just and fair trial. As a matter of fact,

article 22 of the MRE is more restrictive than the common law rule of evidence because it is limited to the state of mind of the accused and his identity. This

section of the MRE is more favourable to the accused than the common law rule because it restricts more admissibility of inadmissible evidence in those circumstances and, for that reason, being more favorable to the accused, I would strictly apply

article 22 of the MRE. [ 8 ] The proposed evidence by the prosecution is the testimony of the two complainants and the testimony provided by the padre, Major Smith. The prosecution would like the court to infer from that evidence three things: (

a) that the two separate incidents involving the accused actually did happen; (

b) to negate the potential defense of consent or mistaken belief in consent that could be potentially raised by the accused; and (

c) to support the existence of a pattern of behaviour by the accused in order to demonstrate that he did what he intended to do. [ 9 ] The prosecution asks the court to declare as admissible the testimony provided by one complainant in relation to the second charge, together with the testimony provided by the padre, Major Smith, in order to allow the court to make some determination on the first charge, and at the same time, to also declare as admissible the evidence of the other complainant concerning the first charge to allow the court in making some determination on the second charge. [ 10 ] According to the prosecution, this inference, if the evidence is admitted as similar fact evidence, would be submitted to the court as a piece of evidence to prove the state of mind of the accused on the sexual assault charges. [ 11 ] In short, the prosecution would like to see the evidence provided by one complainant as being used as similar fact evidence towards the charge involving the other complainant, and reciprocally. [ 12 ] To make such determination, the court must first proceed in weighing the probative value of the evidence, then assess the prejudice for the purpose of admissibility and, finally, balance the two, always bearing in mind that the similar fact evidence is prima facie inadmissible, and that admission will be an exception that must be established as appropriate on the balance of probabilities by the prosecution. [ 13 ] First, in accordance with

article 22 of the MRE, I must say that there is evidence other than that of essentially similar acts of the accused concerning the state of mind of the accused on each charge. Each testimony, including the one of the padre reporting the statement made by the accused, is sufficient to establish a real suspicion of intent to touch and knowing of, or being reckless of or wilfully blind to a lack of consent on the part of the person touched for the sexual assault charges. [ 14 ] Now, about the probative value. First, the strength of the evidence that the similar fact occurred.

I have to say that the credibility related to a testimony that resulted in a conviction is different than a testimony for which no analysis has yet been provided. The strength of the evidence is not the same and is diminished in some way in that context. Without making any finding on the credibility of both complainants, some issues were raised through cross-examination that would call for a decision by the court on credibility and reliability of those testimonies.

As an example, on the first charge, the complainant was asked about what she remembered at different times, which goes from “not a lot of things” to “most of time.” As another example, the second complainant described a level of drunkenness as different than what was reported in the statement of the accused to the padre. Those little points call for an analysis that I won’t do now,

but do raise some issues regarding the strength of the evidence. [15] The defence raised the issue of collusion. I would say that there was only an opportunity for collusion between both complainantsand there was no real one demonstrated so it was something that I would leave at this stage for another time, but it does not impact muchon the strength of evidence. [16] I was talking about the probative value. What is the extent to which the proposed evidence supports the inference sought to bemade? I would conclude one of the inferences is not a properly defined issue.

In the context of a sexual assault charge, the mens rea orthe intention of the accused to commit a crime is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack ofconsent, either by words or actions, from the person being touched and it contains two elements: intention to touch and knowing of, orbeing reckless of or wilfully blind to a lack of consent on the part of the person touched (see R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330). [17] Considering the very limited purpose for which evidence of similar facts can be introduced pursuant to

article 22 of the MRE,which is to prove the state of mind of the accused or his identity, I do not see it being possible for the court to use, as suggested by theprosecution, the testimony of one complainant in order to infer that the incident on the other charge, in fact, did happen, which would bea reference to the act itself, the actus reus. I conclude that there is a disconnect between this inference that the prosecution would like thecourt to make and what is allowed by the MRE. [18] Also, about the connection in time, I conclude that there is no real proximity in time between the two incidents.

The first matteroccurred and was resolved a month prior or so before the other alleged matter occurred. And, it is not demonstrated that there is a linkbetween those two. In fact, both incidents are separated by at least two months and it was not demonstrated that there was a link betweenboth incidents. So, with respect to time, there is no proximity. [19] I also conclude that there are more dissimilarities of the instances than similarities. I will compare the evidence of thecomplainant on the first charge versus the evidence of the complainant on the second charge here: (

a) for one complainant, the accused was a good friend, while for the other complainant, he was an acquaintance; (

b) the complainant on the first charge had real contact with the accused over the night throughout the incident, while there was noreal contact between the other complainant and the accused up to the time of the incident; (

c) according to the testimony of the complainant on the first charge, the complainant was not drunk, while the complainant on thefirst charge mentioned that she was really drunk; (

d) when the complainant did come back with the accused to the College, the complainant was basically accompanied by the accused,while in the other charge, the complainant came back on her own or at least without the presence of the accused; (

e) on the second charge, the accused took the complainant to her room, when it was not the case in the context of the first charge; (

f) as described by the complainant of the second charge, the accused entered into her room versus in the other charge, he accessedthe room by knocking on the door, the door was opened, and he was allowed to go in by the complainant; (

g) in one instance, the complainant was awake versus, in the other, the complainant was sleeping and was woken up by the accusedknocking on the door; (

h) no intercourse occurred, according to the complainant, in the second charge, while full intercourse occurred, according to thecomplainant, in the first charge; and (

i) the alleged incident of the second charge took place, according to the complainant, in the room and in the shower, whereas in thefirst charge, the complainant specified that it was limited to the room only.

So, there are many dissimilarities between both incidents. [20] I conclude that the circumstances are different despite some general similarities mentioned by the prosecution such as the factthat it occurred at the College, that alcohol was involved and that everything started in the room of the complainants. [21] Staying with the issue of assessing probative value to the extent to which the matters intended to be proven are at issue in theproceeding, as I mentioned, the actus reus was precluded from being proven through this exception.

Also, the existence of a patterninvolving two different incidents is very low considering those differences in the circumstances for both incidents. I would say that thisevidence may be used in order to negate the defence by establishing intention to touch and knowing of, or being reckless or wilfullyblind to, a lack of consent on the part of the person being touched. [22] So, from my perspective, having assessed the probative value, I conclude that the probative value of this evidence is lowconsidering what I have mentioned previously. [23] I have to also assess the prejudice.

There are two items I would like to mention in assessing prejudice; there is the moralprejudice and the reasoning prejudice. From my perspective, the moral prejudice is high because it would rely mainly on the generaldisposition or propensity to commit such crime. This is what this evidence would do. According to the prosecution, alcohol would makethe accused a bad person when he sexually desires somebody and it would support his propensity to get involved in sexual misconductwith his female peers.

This is exactly what this exception seeks to achieve, that is, to avoid such a conclusion about disposition orpropensity and I think that the evidence of both complainants, if used for one count in the analysis of another, may bring the court tolook at it as a general disposition or propensity to commit the crime more than anything else.

[ 24 ] Regarding the reasoning prejudice, I would say that it is very low because, as recognized by case law, when a trial is presided by a judge alone, the risk of confusion is low.

The judge has the ability, through knowledge, training and experience, to separate things and apply appropriate evidence to the legal concepts which is more difficult to do for panel members who are not legally trained, so, for that reason, the reasoning prejudice is low, but considering what I have mentioned regarding the moral prejudice, my general conclusion, in assessing the prejudice, is that the prejudice is high if this evidence is declared admissible, then my final conclusion is to balance both the probative value and prejudice. [ 25 ] I conclude that the probative value of the evidence does not exceed its prejudicial effect.

Similar fact evidence has not been demonstrated to be sufficiently probative to justify running the risks of prejudice presented by the evidence on the three inferences proposed by the prosecution. FOR THESE REASONS, THE COURT: [ 26 ] Dismisses the application of the prosecution and the evidence of one complainant to be used for the analysis of the other count is inadmissible. Counsel: The Director of Military Prosecutions as represented by Major M. Pecknold, Major A.-C. Samson and Major J.A. Peck Major C.E. Thomas and Major D. Hodson, Defence Counsel Services, Counsel for Officer Cadet A.R. Whitehead