R v Vezina, 2013 CM 3013

COURT MARTIAL Citation: R v Vezina , 2013 CM 3013 Date: 20130610 Docket: 201264 Standing Court Martial Canadian Forces Base Borden Borden, Ontario, Canada Between: Her Majesty the Queen - and - Private A.L. Vezina, Accused Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR FINDING (Orally) [ 1 ] Private Vezina is charged with two service offences under

section 130 of the National Defence Act for trafficking in cocaine on 20 April and 26 April 2012 contrary to subsection 5(1) of the Controlled Drugs and Substances Act , and with two alternative service offences, also under

section 130 of the National Defence Act for trafficking in a substance held out to be cocaine on the same dates, also contrary to subsection 5(1) of the Controlled Drugs and Substances Act . [ 2 ] The evidence is composed of the following elements: a. the testimony of five witnesses heard in the following order: Sergeant Chapdelaine, Sergeant Janes, Master Corporal Krull as the lead investigator on this matter, Mr Daly, and Petty Officer 2nd Class Clowe as the undercover operator for this investigation; b. a number of exhibits going from pictures of small bags with substances in it, the substance itself, two certificates of analyst,

documents in relation to the handling of the substances for analysis, and documents in relation with the undercover operation; and c. the judicial notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence, and more specifically, the content of the Annex D of the publication A-SJ-100-004/AG-000, Technical Manual of the Military Police, and specifically entitled "Use of Informers and Agents." [ 3 ] PRETC is a platoon at Canadian Forces Base Borden where candidates who went through their basic training are waiting to get on their trade course.

Private Vezina was a member of that platoon. [ 4 ] Between the period of 14 November 2011 and April 2012, the military police got different information concerning the use of drugs by some members of the PRETC. Master Corporal Krull, the lead investigator on that specific matter, learned during that period of time through three different confidential informants, Ontario Provincial Police, and the Barrie Police Services that: a. some members of the PRETC would use cocaine; b. Private Vezina was a member of the PRETC; c. Private Vezina would use cocaine; d.

Private Vezina would have used cocaine during her basic training; e. Private Vezina had a girlfriend, Elizabeth Smith; f. Private Vezina was living at her girlfriend's apartment located in Barrie, which is a city in the area of CFB Borden; g.

Private Vezina had a room located at building A-79 on CFB Borden and where all female members of the PRETC were also temporarily accommodated; h. it would have been confirmed that three Canadian Forces members living at building A-79 would use cocaine; i. a cleaning lady at the building A-79 would be associated with those CF members using cocaine; j. the Crossover's strip club was a place where CF members from CFB Borden would go to get drugs; k. there was a gang doing drugs at the housing where Private Vezina was living with her girlfriend; l.

Elizabeth Smith would be a former stripper and would have some involvement as a drug supplier; m. Elizabeth Smith would be known as a drug dealer in Barrie and would supply all kinds of drugs; and n. Elizabeth Smith would have provided drugs to a CF member.

[ 5 ] Master Corporal Krull made an investigation plan on 16 December 2011 where he considered a surveillance operation of Private Vezina in order to confirm that Elizabeth Smith was trafficking. However, it was an undercover operation that was approved in order to confirm the use of drugs in building A-79.

Also it was planned to conduct a test for cause, but because of the lack of reasonable grounds to proceed it was never done. [ 6 ] On 30 January 2012, an undercover operation request was submitted in order to achieve two objectives: to confirm sources information and secure narcotic purchases from three CF members, including Private Vezina and also her girlfriend, Elizabeth Smith; and to conduct a probe into the scope of the drug use at building A-79 among female occupants. [ 7 ] On 15 April 2012, the undercover operation started.

Sergeant Janes was the undercover handler and Petty Officer 2nd Class Clowe was the undercover operator. [ 8 ] Petty Officer 2nd Class Clowe arrived at CFB Borden on 15 April 2012. She got a room at building A-79 on that same day. [ 9 ] Some of the PRETC members were used as mentors for the Aboriginal Mentoring Programme, which is a pre-recruitment programme used for familiarizing Aboriginals interested in a military career with basic requirements on the basic training programme. Some CF members of the PRETC were tasked to help out and act as mentors for Aboriginals on this programme.

Private Vezina was tasked as was Petty Officer 2nd Class Clowe, who was for the purpose of the undercover operation, Private Sampson, as mentors on that programme, so both would be in the same working environment. [ 10 ] Petty Officer 2nd Class Clowe made her first contact with Private Vezina on 16 April 2012.

Both got acquainted with each other throughout the next days and on the evening of 18 April 2012, Petty Officer 2nd Class Clowe asked during a conversation she had with Private Vezina when the latter was telling her that her girlfriend was working at the Crossover's strip bar, she asked her if she could get her some coke. Private Vezina then asked her if she was really doing that, to which she replied positively. Private Vezina then confirmed that she would be able to get her some stuff.

From that point text messages and conversations took place about the price and delivery. [ 11 ] On 20 April 2012, Petty Officer 2nd Class Clowe paid in advance $80, 4 times $20, to Private Vezina. The exchange of the money took place at lunch time in Private Vezina's car in front of the mess hall on CFB Borden on that same day. Petty Officer 2nd Class Clowe paid for one gram of cocaine. [ 12 ] On the evening on that same day, Private Vezina came on the base to deliver the drug. The exchange took place in the parking lot of building T-115 on CFB Borden.

Private Vezina was in her car with another female person sitting in the passenger's seat. Petty Officer 2nd Class Clowe went on the driver's side, the driver's window was half down, she gave $20 to Private Vezina for gas fees, which was discussed prior to the exchange, and Private Vezina gave her a small bag with a white powder in it. Petty Officer 2nd Class Clowe discussed briefly with Private Vezina; she went back to work and Private Vezina left. [ 13 ] Further to her work shift, Petty Officer 2nd Class Clowe gave the small bag to her handler, Sergeant Janes, who then gave it to Master Corporal Krull.

The latter secured it in a temporary evidence locker. [ 14 ] Things went on normally between Petty Officer 2nd Class Clowe and Private Vezina. On 23 April 2012, Petty Officer 2nd Class Clowe approached Private Vezina in order to get some cocaine again. Private Vezina responded positively and confirmed that she needed to be paid in advance as it was done last time. [ 15 ] On 24 April 2012, Petty Officer 2nd Class Clowe paid $100 to Private Vezina. The amount represented $80 for the cocaine and $20 for the delivery.

The exchange of money took place around two o'clock in the afternoon in the female bathroom of building T- 83 on CFB Borden. [ 16 ] It took some time for Private Vezina to find somebody to supply the drug and Petty Officer 2nd Class Clowe communicated with her once in awhile to know when she could get the drug. Finally, the exchange took place in front of building A-79 around 11:30 p.m. on 26 April 2012. Petty Officer 2nd Class Clowe exited the building and she went on the driver's side of Private Vezina's car. They

had a short conversation. Private Vezina gave her a small bag with a white powder in it. Private Vezina, who was alone that time, leftand Petty Officer 2nd Class Clowe went back inside the building. Later on that night, Petty Officer 2nd Class Clowe gave the small bagto her handler, Sergeant Janes, who then gave it to Master Corporal Krull.

The latter secured it in a temporary evidence locker. [17] On 27 April 2012, Petty Officer 2nd Class Clowe proceeded with her out-clearance of CFB Borden and left the base. [18] On 27 April 2012, Sergeant Chapdelaine took photographs of both small bags received by Petty Officer 2nd Class Clowe andfrom Private Vezina and then both substances in both bags were sent to Health Canada Drug Analysis Service.

Both substances weresent back to Canadian Forces National Investigation Services at CFB Borden at the end of June 2012 with two Certificates of Analystconfirming that both substances were cocaine. [19] A Notice of Intent to produce both Certificates of Analyst was served to the accused on 25 June 2012. [20] Before this court provides its legal analysis, it's appropriate to deal with the presumption of innocence and the standard ofproof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamental to all criminal trials.

Andthese principles, of course, are well known to counsel, but other people in this courtroom may well be less familiar with them. [21] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in our criminal law and theprinciple of proof beyond a reasonable doubt is an essential part of the presumption of innocence. In matters dealt with under the Codeof Service Discipline, as in cases dealt with under criminal law, every person charged with a criminal offence is presumed to be innocentuntil the prosecution proves his or her guilt beyond a reasonable doubt.

An accused person does not have to prove that he or she isinnocent. It is up to the prosecution to prove its case on each element of the offence beyond a reasonable doubt. [22] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces ofevidence that make up the prosecution's case, but to the total body of evidence upon which the prosecution relies on to prove guilt.

Theburden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to theaccused person. [23] A court must find an accused person not guilty if it has a reasonable doubt about his or her guilt or after having considered allof the evidence. The term "beyond a reasonable doubt" has been used for a very long time. It is part of our history and traditions ofjustice. In R v Lifchus (SCC), [1997] 3 SCR 320, the Supreme Court of Canada proposed a model charge onreasonable doubt.

The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate courts subsequentdecisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It isa doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells thecourt, but also on what that evidence does not tell the court.

The fact that a person has been charged is no way indicative of his or herguilt, and I will add that the only charges that are faced by an accused person are those that appear on the charge sheet before the court. [24] In R v Starr 2000 SCC 40 , [2000] 2 SCR, 144, at paragraph 242, the Supreme Court held that: ... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than toproof on a balance of probabilities. [25] On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty.

Theprosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has theburden of proving the guilt of an accused person, in this case, Private Vezina, beyond a reasonable doubt. To put it in perspective, if thecourt is convinced or would have been convinced that the accused is probably or likely guilty, then the accused would have beenacquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. [26] What is evidence?

Evidence may include testimony under oath or solemn affirmation before the court by witnesses aboutwhat they observed or what they did; it could be documents, photographs, maps or other items introduced by witnesses; the testimony ofexpert witnesses; formal admissions of facts by either the prosecution or the defence in matters of which the court takes judicial notice.

[ 27 ] It is not unusual that some evidence presented before the court may be contradictory. Often witnesses may have different recollections of events. The court has to determine what evidence it finds credible. [ 28 ] Credibility is not synonymous with telling the truth and a lack of credibility is not synonymous with lying. Many factors influence the court's assessment of the credibility of the testimony of a witness.

For example, a court will assess a witness' opportunity to observe; a witness' reasons to remember, like, were the events noteworthy, unusual and striking or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence or is the witness impartial? This last factor applies in a somewhat different way to the accused.

Even though it is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit a conclusion that an accused will lie where that accused chooses to testify. [ 29 ] Another factor in determining credibility is the apparent capacity of the witness to remember. The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers or evasive, hesitant or argumentative?

Finally, was the witness' testimony consistent with itself and with the uncontradicted facts? [ 30 ] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious and it may well taint a witness' entire testimony. [ 31 ] The court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible.

However, a court will accept evidence as trustworthy unless there is a reason, rather to disbelieve it. [ 32 ] Subsection 5(1) of the Controlled Drugs and Substances Act reads in part as follows:

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. [ 33 ] The essential elements of the offence of trafficking under that

section concerning charges 1 and 3 are: a. the identity of the accused as the offender; b. the date and place of the offence; and c. the accused trafficked in a substance. To traffic means to sell, administer, give, transfer, transport, send or deliver something to someone or to offer to do so. To sell includes offering or exposing for sale to have a thing in his or her possession for sale and to distribute. To transport means to carry a substance in order to distribute it to others.

A person may offer to traffic in a substance even if he or she does not have possession of the substance at the time of the offer or the capacity of the offer. It does not matter whether money or anything else of value actually changes hands as long as the person possessed the substances and provided it or offered to provide it to someone else. A person may traffic in a substance in any of these different ways and prove beyond a reasonable doubt of any one of these ways is enough to establish this essential element; d. the nature of the substance.

A controlled substance is any substance that a person cannot legally buy, sell or possess without government authorization; e. the accused knew the nature of the substance was cocaine; and f. the accused had the intent to traffic in cocaine. This question has to do with the accused's state of mind, what she meant to do when she trafficked in cocaine. The prosecution must prove beyond a reasonable doubt that the accused meant to traffic. In other words, means to transfer the substance from her to somebody else.

[34] Concerning charges 2 and 4, the essential elements are the same except for the nature of the substance and the fact that it is notnecessary for the prosecution to prove knowledge by the accused that she knew the nature. Instead of proving the exact nature of thesubstance, the prosecution had to prove that the accused held out the substance to be cocaine.

It means that the accused offered orrepresented that the substance she provided was a substance that person cannot legally buy, sell or possess without governmentauthorization. [35] The prosecution strongly suggested to the court that it discharged its burden of proof on all essential elements of the fouroffences before the court beyond a reasonable doubt.

The defence counsel made the decision to make no submissions to the court on thisissue. [36] As a procedural matter, the court learned for the very first time during the cross-examination by the defence counsel of the thirdwitness called by the prosecution of the intent of the accused to proceed with an entrapment hearing at the end of this trial.

The reality isthat further to an objection of the prosecutor to a question asked by defence counsel, the latter informed the court that his line ofquestions put to the lead investigator was in order to put evidence that raised a reasonable doubt on an essential element of the offence,but also to induce evidence in order to support a defence of entrapment. [37] On that issue I answered that the entrapment hearing must proceed at the end of the trial further to a determination by this courtof the finding of each count.

The reality is, as indicated R v Mack (SCC), [1988] 2 R.C.S. 903, such procedure mustproceed before the judge of law. Now, a military judge alone presides and constitutes a Standing Court Martial, meaning by this that thecourt is presided by a judge alone. As for a Charter matter as an alleged abuse of process under

section 7 of the Canadian Charter ofRights and Freedoms, I considered that defence counsel could proceed with his questions related to the behaviour of the military policeconcerning the investigation and the undercover operation during the main trial in order to avoid calling back some witnesses. [38] I considered that I could proceed in that way, being able to make first a determination on the finding for the four charges beforecourt and if necessary to proceed with the entrapment hearing after that, if requested by defence counsel.

Evidence adduced during themain trial could then be considered by this court on this specific procedure and parties will be given the ability to introduce any otherevidence during the entrapment hearing if they are so and if we have to proceed. [39] As a matter of fact, in this trial, credibility and reliability of witnesses called by the prosecution are not at issue. All witnessestestified in a straightforward manner, answering clearly to all questions asked by both counsel. This perspective was not even raised bydefence counsel as a matter to consider on the determination of the finding by this court.

Consequently, this manner to proceed isconsidered by this court as being adequate in the circumstances of this trial. [40] Concerning the first and third charge, the testimony of Petty Officer 2nd Class Clowe established beyond a reasonable doubt theidentity of Private Vezina as the offender, when and where both offences took place, that Private Vezina trafficked by selling the cocaine,she knew the nature of the substance, and that she intended to traffic in cocaine. [41] Concerning the nature of the substance on both charges, the chain of possession from the time it was received from PrivateVezina to the time it was introduced in court was clearly established and the Certificates of Analyst clearly established that it is asubstance included in

Schedule I of the Controlled Drugs and Substances Act, to wit, cocaine. [42] Then the court considers that on both charges, the prosecution discharged its burden of proof regarding all essential elements forboth offences. [43] Now, about the second and fourth charges, the testimony of Petty Officer 2nd Class Clowe also established beyond a reasonabledoubt the identity of Private Vezina as the offender, when and where both offences took place, that Private Vezina trafficked by sellingcocaine, and that she intended to traffic. [44] The testimony of Petty Officer 2nd Class Clowe also established beyond a reasonable doubt that Private Vezina held out thesubstance she trafficked in to be one included in

Schedule I of the Controlled Drugs and Substances Act, to wit, cocaine. [45] Then the court considers that on both charges, the prosecution also discharged its burden of proof regarding all essential elementsfor both offences.

[ 46 ] It is the conclusion of the court, having regard to the evidence as a whole, and concerning all the essential elements on the four charges before this court that the prosecution has proved beyond a reasonable doubt that Private Vezina committed four services offences punishable under

section 130 of the National Defence Act for trafficking, contrary to subsection 5(1) of the Controlled Drugs and Substances Act . FOR THESE REASONS, THE COURT: [ 47 ] FINDS you guilty of the first and third charge. [ 48 ] Directs a stay of proceedings on the second and the fourth charge considering that those charges were put in alternative. Counsel: Major E. Carrier, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutentant-Commander B.G. Walden, Directorate of Defence Counsel Services Counsel for Private A.L. Vezina