R v Laliberté, 2014 CM 2010

COURT MARTIAL Citation: R v Laliberté , 2014 CM 2010 Date: 20140522 Docket: 201372 Standing Court Martial Canadian Forces Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen - and - Corporal C.J. Laliberté, Accused Before: Colonel M.R. Gibson, M.J. REASONS FOR FINDING [ 1 ] Corporal Laliberté is charged with four offences. The first charge, punishable under

section 130 of the National Defence Act , is one of interception of private communications contrary to section 184(1) of the Criminal Code . The second charge, laid in alternative to the first charge, is of conduct to the prejudice of good order and discipline contrary to

section 129 of the National Defence Act for allegedly using military police electronic monitoring equipment without authority, contrary to the Military Police Professional Code of Conduct . The third and fourth charges allege that he behaved with contempt towards a superior officer, contrary to

section 85 of the National Defence Act . [ 2 ] In explaining the court's decision, I shall first review the facts of the case as they have emerged in the evidence heard by the court, then instruct myself as to the applicable law, and indicate the findings that I have made with regard to the credibility of certain witnesses. I will then apply the law to the facts in explaining the analysis that I have made, before indicating the court's determination as to finding on these four charges. [ 3 ] First of all with regard to the facts. The prosecution called six witnesses: Captain Powell, Ms.

Jody Schnare, Master Corporal Nachuk, Leading Seaman Marcelli, Warrant Officer (retired) Hoben, and Master Corporal Fitzgerald.

[ 4 ] The accused person, Corporal Laliberté, also gave evidence. [ 5 ] The first three charges arise from the attendance of Corporal Laliberté at a G3 Branch Health and Safety Committee meeting at Canadian Forces Base (CFB) Gagetown on 11 June 2013, and his interaction at that meeting with Master Corporal Nachuk, and from subsequent events at the CFB Gagetown Military Police Detachment flowing from this interaction later the afternoon of the same day.

In brief, following a discussion of certain health and safety related issues, during the round table portion of the meeting, a heated interaction took place between Corporal Laliberté and Master Corporal Nachuk, a person attending the meeting from a different unit , during which Corporal Laliberté tore off the nametag from his CADPATS, and conveyed it towards Master Corporal Nachuk for him to read.

The manner in which he conveyed it was variously described by different witnesses as "tossed, thrown, flicked like a Frisbee, or placed." He also said words to Master Corporal Nachuk to the effect that Master Corporal Nachuk was not in his chain of command, that he could thus not tell him what to do, that he did not have to listen to him, and that he knew his rights. [ 6 ] Upon returning to the Military Police Detachment, Corporal Laliberté went to the monitoring room where recording equipment to record interviews taking place in the two interview rooms was located, pursuant to a tasking that had been given to him by Master Corporal Fitzgerald, his immediate supervisor.

Upon observing on the monitor located in the room Master Corporal Nachuk and Warrant Officer Hoben discussing him in the "soft interview room as it was known," he pressed the record button on the recording equipment. A recording of the discussion between Warrant Officer Hoben and Master Corporal Nachuk was made.

Shortly thereafter, Corporal Laliberté admitted to Warrant Officer Hoben and to Master Corporal Fitzgerald that he had recorded the discussion. [ 7 ] The fourth charge arises from the interaction of Corporal Laliberté with his immediate supervisor, Master Corporal Fitzgerald, at the CFB Gagetown Military Police Detachment on 19 June 2013, when Corporal Laliberté sought to present a memo to Master Corporal Fitzgerald for his review concerning Corporal Laliberté's wishes that the LGBT pride flag be flown at the Base Headquarters at CFB Gagetown in August in conjunction with an event scheduled for the City of Fredericton.

Master Corporal Fitzgerald told Corporal Laliberté that he was busy at that moment and that he would have to give him the memo to review later.

Corporal Laliberté then sought to leave and an exchange of words occurred, during which Corporal Laliberté made reference to going to the media if Master Corporal Fitzgerald did not comply with his wishes expeditiously. [ 8 ] The court took judicial notice pursuant to Military Rules of Evidence 15(2) of the contents, but not of the publication or sufficiency of notification, of the Military Police Professional Code of Conduct, SOR/2000-14 , a regulation made under the National Defence Act , which is published at Appendix 7.1 of Volume IV of Queen's Regulations and Orders .

Annex E (Interview Aid: Interview) to the Military Police publication A-SJ-100-004/AG-000, dated July 2004, was also introduced in evidence as Exhibit 3. [ 9 ] I now turn to the law.

In order to arrive at a proper finding in this case, the court must instruct itself as to the applicable law: a. the elements of the offences with which Corporal Laliberté is charged; and b. the elements of identity and time, date and place of the alleged offences are not in dispute, and have been admitted by the defence. [ 10 ] The first charge on the charge sheet, the offence of interception of private communications under section 184(1) of the Criminal Code , has the following additional elements.

In order to commit the offence: a. there must be by means of any electro-magnetic, acoustic, mechanical or other device, some action; b. the action must take place wilfully; c. there is a requirement that the person intercepts something; and d. what is intercepted must be a private communication.

[ 11 ]

Section 183 of the Criminal Code provides several

definitions relevant to the

interpretation of this

section 184 offence. "Electro-magnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication. "Intercept" for the purposes of this offence includes "listen to, record or acquire a communication".

"Private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it. [ 12 ] The term "wilfully" does not have a fixed meaning in Canadian law, and must take its meaning from the context.

Generally, however, it connotes an intention to bring about a proscribed consequence. [ 13 ] The second charge engages subsection 129(2) of the National Defence Act , which provides that:

An act or omission constituting an offence under

section 72 or a contravention by any person of (

a) any of the provisions of the Act, (

b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or (

c) any general, garrison, unit, station, standing, local or other orders, is

an act, conduct, disorder or neglect to the prejudice of good order and discipline. [ 14 ] The wilful contravention by a person subject to the Code of Service Discipline of a regulation made under the National Defence Act would thus be deemed to have a prejudicial effect on good order and discipline. In order to establish the offence, it must be established that the person intended to do the prohibited underlying act that would constitute a contravention of the order or regulation, and that the act did in fact contravene the order or regulation. [ 15 ] The third and fourth charges on the charge sheet engage the

section 85 National Defence Act offence of behaving with contempt towards a superior officer, which has the following essential elements: (

a) the person towards whom the behaviour was directed must have been a superior officer, within the meaning of the definition of that term in

section 2 of the National Defence Act ; (

b) the court must be satisfied that the accused person knew that the person with respect to whom the offence was committed was a superior officer; (

c) the contemptuous behaviour must have been within the sight or hearing of the superior officer in question; and (

d) the behaviour must have been contemptuous. [ 16 ] The Oxford dictionary defines contemptuous as "showing contempt, or insolent." It defines contempt as "feeling that a person or a thing is beneath consideration or worthless, or deserving scorn or extreme reproach."

[17] The standard upon which a particular action or words spoken is to be assessed is an objective one; that is, what would areasonable person perceive, not the subjective feelings of the accused as to whether his or her words, gestures or actions were intended tobe contemptuous. [18] The second issue relates to the presumption of innocence and the standard of proof beyond a reasonable doubt.

Counsel arewell familiar with this concept, but it may be that other persons in the courtroom are not, so the court will expand for a moment on thisparticularly for the benefit of the accused, Corporal Laliberté. [19] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and thestandard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governscriminal trials in this country.

In matters dealt with under the Code of Service Discipline, as with cases dealt with under Canadiancivilian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guiltbeyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove itscase on each essential element of the offence beyond a reasonable doubt.

An accused person is presumed innocent throughout his or hertrial until a verdict is given by the finder of fact. [20] 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 to prove guilt. In orderto secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proofbeyond a reasonable doubt.

The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon theprosecution and it never shifts to the accused person. [21] The court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elementsof the offence after having considered all of the evidence. [22] The term "beyond a reasonable doubt" has been used for a very long time. It is part of our history and tradition of justice. [23] In R v Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge onreasonable doubt.

The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate court decisions. Insubstance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubtbased on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court,but also on what that evidence does not tell the court.

The fact that the person has been charged is of course in no way indicative of hisor her guilt. [24] In R v Starr 2000 SCC 40 , [2000] 2 S.C.R. 144, at paragraph 242, the Supreme Court of Canada 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 beyond a reasonable doubt. [26] To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty,then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. [27] The third issue is the assessment of the testimony of witnesses. [28] Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed orwhat they did.

It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expertwitnesses, formal admissions of facts by either the prosecution or the defence, and matters of which the court has taken judicial notice.

[29] It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have differentrecollections of events. The court has to determine what evidence it finds credible and reliable. [30] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factorsinfluence the court's assessment of the credibility of the testimony of a witness. For example, a court will assess a witness's opportunityto observe events, as well as a witness's reasons to remember.

Was there something specific that helped the witness remember thedetails of the event that he or she described? 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 theprosecution or the defence, or is the witness impartial? This last factor applies in a somewhat different way to the accused.

Even thoughit is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit aconclusion that an accused will lie where the accused chooses to testify. [31] The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witnessresponsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative?

However, demeanour must beassessed with caution, and should be assessed in conjunction with an assessment of whether the witness's testimony was internallyconsistent, that is, consistent with itself, and consistent and with the other uncontradicted or accepted facts in the evidence. The Court ofAppeal for Ontario, and the Court Martial Appeal Court, have cautioned against over-reliance on demeanour as a factor in assessing thecredibility of witnesses and the reliability of their evidence. [32] 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's entire testimony. [33] The court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The court may accept the evidence of a particular witness in total, in part, or not at all. In Captain Clark v. The Queen, 2012 CMAC 3, 2012CMAC 3, the Court Martial Appeal Court has given very clear guidance as to the assessment of credibility of witnesses. Justice Watt for the court elaborated the governing principles.

First, witnesses are not "presumed to tell the truth." A trier of fact mustassess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption,except the presumption of innocence of the accused person. [34] Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by thetestimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to rejectuncontradicated evidence.

A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in theproceedings. [35] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or hertestimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness' testimony withoutqualification. Credibility is not co-extensive with proof. [36] As Justice Watt indicated at para 48 of Clark: Testimony can raise veracity and accuracy concerns.

Veracity concerns relate to a witness' sincerity, his or her willingness tospeak the truth as a witness believes it to be. In a word, credibilty. Accuracy concerns have to do with the actual accuracy of the witness'account. This is reliability.

The testimony of a credible, in other words an honest witness, may nonetheless be unreliable. [37] The accused, Corporal Laliberté, gave evidence in his trial and his evidence was essentially a denial of several facts directlyrelevant to essential elements of these offences. [38] Given this, the court must focus its attention on the test provided in the reasons for decision of Justice Cory in the SupremeCourt of Canada case of R v W.(D.) (SCC), [1991] 1 S.C.R. 742, for cases such as this where the accused has testifiedand his evidence essentially constitutes a denial of one of the essential elements of the offence.

This guidance provides as follows:

First, if I believe the evidence of the accused, then I must acquit. Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [39] In R v J.H.S. 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R vH.(C.W.) (1991) (BC CA), 68 C.C.C. (3d) 146 (BCAA) where Wood J.A. suggested the additional instruction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a carefulconsideration of all the evidence, you are unable to decide whom to believe, you must acquit." [40] I will now turn to an assessment of the evidence in this case, and whether the prosecution has met its burden of proving theguilt of the accused on each essential element of the offence, to the standard of proof beyond a reasonable doubt. [41] Applying the W(

D) analytical framework, I start with the evidence of the accused Corporal Laliberté. I found CorporalLaliberté to be a generally credible witness with regard to some portions of his evidence, but not in others. I accepted some of hisevidence, but not all of it. There are specific, and important, portions of his evidence that I did not accept as credible or reliable. I do notaccept these portions because they are not internally consistent, are illogical, or are contradicted by the evidence of other witnesseswhose evidence I specifically do accept.

Moreover, aware of the limitations and caveats regarding using demeanour to assess credibilityto which I earlier referred, as a secondary element of my assessment I found that the demeanour of Corporal Laliberté during his cross-examination was unpersuasive and at times evasive. [42] Specifically, I do not believe or accept his evidence that, in the circumstances of the meeting room in which the Health andSafety meeting took place on 11 June 2013, he could not see the rank slip-on on the chest of Master Corporal Nachuk who was directlyfacing him during the meeting, and that he was thus unaware at that time of the rank of Master Corporal Nachuk and that he was hissuperior officer within the meaning of

section 2 of the National Defence Act. Corporal Laliberté was able to read the nametag of MasterCorporal Nachuk, which would have been adjacent to the rank slip-on, and could thus easily have seen the rank slip-on. I do not believethat Corporal Laliberté was unaware of Master Corporal Nachuk's rank during this interaction. [43] Second, I do not believe Corporal Laliberté's version of events regarding what transpired in the monitoring room of themilitary police detachment when he pressed record on the recording apparatus.

His version that he simply pressed record, without anexplanation of his intent, is hollow and unpersuasive in the circumstances. I also do not believe that he did not intend to record theinterview on a DVD.

I also do not believe that he was tasked by Master Corporal Fitzgerald to actually record the existing interviews onthe hard drive onto DVD. [44] Third, I do not believe his version of his interaction with Master Corporal Fitzgerald at the military police detachment on 19June, and that his invocation of going to the media if Master Corporal Fitzgerald did not immediately comply with his wishes, was madewithout a threatening intent.

I shall say more on this point later. [45] I do not believe the evidence of Corporal Laliberté on these crucial points, nor does his evidence give rise to a reasonabledoubt for me. [46] I must then turn to assessing whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubtby that evidence of the guilt of the accused. [47] I will start by an assessment of the credibility and reliability of the evidence of the witnesses called by the prosecution,mindful of the guidance of the Court Martial Appeal Court described earlier.

[ 48 ] I found all of the prosecution witnesses to be credible and reliable. They were all evidently doing their best to give their evidence accurately, fairly, and without embellishment. In particular, I found the two most important prosecution witnesses, Master Corporal Nachuk, and Master Corporal Fitzgerald, gave their evidence without embellishment and in a calm, measured fashion.

I find their evidence to be credible and reliable. [ 49 ] A considerable portion of the evidence presented before the court may be considered as background context to these event, but was not directly relevant to the charges before the court.

It is important for all to understand that, ultimately, the task of the court is to assess and make a finding on the specific charges before the court, which relate to specific incidents. [ 50 ] I will now turn to an analysis of each charge. [ 51 ] In respect of the first charge, the evidence discloses that Corporal Laliberté did, at the specified time, date and place, use a JVC recorder (which would fall within the definition of electro-magnetic recording device at

section 183 of the Criminal Code ) to intercept (by recording, again within the meaning of

section 183 of the Criminal Code ) a private oral communication (again within the meaning of

section 183 ) between Warrant Officer Hoben and Master Corporal Nachuk. Both Warrant Officer Hoben and Master Corporal Nachuk testified that they were unaware that they were being recorded, and would not have given their consent to being recorded in that circumstance. [ 52 ] The remaining essential element is that of "wilfully." It is clear from the evidence, including that of Corporal Laliberté himself, that he intended to, and did, push the record button on the recording apparatus. He intended to record the conversation without the knowledge or consent of the two participants. He thus intended to bring about the consequence proscribed by

section 184 of the Criminal Code . For the purposes of the mens rea of this particular offence, it would be legally irrelevant even if, as he claimed in his evidence, Corporal Laliberté thought that he was entitled to make a copy. As specified at

section 150 of the National Defence Act and

section 19 of the Criminal Code , ignorance of the law by a person who commits an offence is not an excuse for committing that offence. Moreover, as conceded by the defence, given that the specified mental element of the

section 184 offence is wilfulness, a defence of honest but mistaken belief would not be applicable in law to negative this element of the offence. It is clear that Corporal Laliberté wilfully pressed the record button and intended to record the conversation.

In any event, on the evidence, the court does not believe or accept that Corporal Laliberté, an experienced member of the Military Police, honestly believed that it was appropriate to make the recording in the circumstances that prevailed in this case. [ 53 ] The court thus finds that the prosecution has met its burden of proving all of the essential elements of the offence for the first charge to the requisite standard of proof beyond a reasonable doubt. [ 54 ] In respect of the second charge, the court has taken judicial notice of the contents of the Military Police Professional Code of Conduct .

The evidence, including the evidence of Corporal Laliberté himself, clearly establishes that he was aware of the contents of the regulation, and had reviewed it at several points during his career. Publication and sufficiency of notice are established. The evidence confirms that he did, at the specified place, date and time, use the electronic monitoring equipment in the military police detachment to surreptitiously (that is, without their knowledge or consent) record Warrant Officer Hoben and Master Corporal Nachuk, and that he did so for a private purpose. This would be contrary to

section 4 (

j) of the Military Police Professional Code of Conduct, which provides that no member of the military police shall use military police resources for a private or another unauthorized purpose. His contravention of this regulation is, by operation of law pursuant to section 129(2) of the National Defence Act , deemed to be prejudicial to good order and discipline. The court thus finds that all of the essential elements of the offence for the second charge are thus established to the standard of proof beyond a reasonable doubt. [ 55 ] In respect of the third charge, place, date and time are not in issue.

The court accepts the evidence of Master Corporal Nachuk regarding the manner in which Corporal Laliberté conveyed his nametag towards him, and finds that Corporal Laliberté did toss his nametag towards Master Corporal Nachuk, a person who was his superior officer within the meaning of

section 2 and

section 85 of the National Defence Act , and said words to the effect of "you are not in my chain of command, you can't tell me what to do, I don't have to listen to you," and that, viewed on an objective standard, these words and conduct were contemptuous towards Master Corporal Nachuk. These actions took place within the sight and hearing of Master Corporal Nachuk, and the court finds that on the facts Corporal Laliberté must have known that Master Corporal Nachuk was a superior officer.

The fact that Corporal Laliberté was frustrated after his interaction with Master Corporal Nachuk and others in the meeting, and may have acted in a fit of petulance, or out of an exaggerated sense of his own importance and role in the meeting, or even out of a genuinely held belief as to the nature of or mode of interaction appropriate in the meeting, may be relevant in mitigation of sentence, but is not relevant to establishing whether he committed the

section 85 National Defence Act offence, and does not negative the essential elements of the offence. The court thus finds that all of the essential elements of the third charge have been established. [ 56 ] Regarding the fourth charge, the court accepts the version of events in the evidence of Master Corporal Fitzgerald, and does

not accept the version of Corporal Laliberté, concerning whether he initially failed to come back when ordered to by Master Corporal Fitzgerald. The court finds that Corporal Laliberté did speak words to the effect of "you better get on this or I will call the media," and that viewed objectively, these words can only be taken to constitute a threat if Master Corporal Fitzgerald did not immediately comply with Corporal Laliberté 's wishes.

In the circumstances, these actions and words were contemptuous towards Master Corporal Fitzgerald, the direct supervisor of Corporal Laliberté whom he knew to be his superior officer, and evidently took place within the sight and hearing of Master Corporal Fitzgerald.

The court thus finds that all of the essential elements of the offence for the fourth charge have been established. [ 57 ] For these reasons, the court finds that the prosecution has met its burden of proving all of the essential elements of all four offences on the charge sheet to the standard of proof beyond a reasonable doubt. [ 58 ] Given that the first and second charges are laid in the alternative to each other, pursuant to QR&O 112.40(2)(a), proceedings will be stayed on the second charge.

FOR THESE REASONS, THE COURT: [ 59 ] FINDS you guilty on the first, third and fourth charges on the charge sheet, and directs that the proceedings on the second charge be stayed. Counsel : Lieutenant-Commander D. Reeves, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Mr. P.E. Hurley, Q.C. Counsel for Corporal C.J. Laliberté