R v Massicotte, 2012 CM 4009

COURT MARTIAL Citation: R v Massicotte, 2012 CM 4009 Date: 20120528 Docket: 201162 Standing Court Martial Her Majesty’s Canadian Ship RADISSON Trois-Rivières, Quebec, Canada Between: Her Majesty the Queen - and - Ex-Acting Sub-Lieutenant C. Massicotte, Applicant Before: Lieutenant-Colonel J-G Perron, M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR DECISION Orally INTRODUCTION [ 1 ] The accused, Ex-Acting Sub-Lieutenant Massicotte, filed a motion under subparagraph 112.05(5)(

e) of the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) for a stay of proceedings under subsection 24(1) of the Canadian Charter of Rights and Freedoms (Charter) for an alleged violation of the rights of the accused under

section 7 of the Canadian Charter of Rights and Freedoms . EVIDENCE

[2] The evidence before the Court consists of the facts and matters of which the Court has taken judicial notice under

section 15 of theMilitary Rules of Evidence, a statement of circumstances, Exhibit R1-2, seven additional exhibits filed by mutual consent of the partiesand the testimony of Ex-Acting Sub-Lieutenant Massicotte. POSITIONS OF THE PARTIES Applicant [3] The applicant is charged with two offences punishable under

section 114 of the National Defence Act, which deals with stealing. Theapplicant alleges that, following an unreasonable pre-charge delay, his right to liberty was violated on four occasions: his detention bymilitary police during his interview, the fact that he had to travel to Victoria to recover the Canada Post acknowledgement, the fact thathe was prevented from moving to Japan and, finally, the fact that

section 114 of the National Defence Act prescribes a sentence ofimprisonment for a term not exceeding seven years. He also alleges that procedural fairness is at issue because the unreasonable delayaffected the applicant’s memory and had a detrimental effect on his ability to make full answer and defence. He states that the principleof fundamental justice at issue is the obligation to bring charges quickly against an individual who has admitted to committing a crime,and that the doctrine of abuse of process is also applicable.

Respondent [4] The respondent submits that the applicant suffered no prejudice as a result of the pre-charge delay because the evidence does notindicate that his liberty was violated, and the respondent argues that the evidence shows that the applicant’s memory was not so deficientas to have had a detrimental effect on his right to make full answer and defence. DECISION [5] We shall begin by considering the principal dates and events relating to this matter: on 17 October 2009, the applicant took acomputer and an iPod from a barrack room.

On the same day, the owner of these items filed a complaint, and a police investigation waslaunched. On 20 October 2009, the applicant admitted to his supervisor, Sergeant Gagné, that he had taken and mailed the items. He wasescorted back to his hotel. On 21 October 2009, the applicant was ordered to recover the Canada Post acknowledgement. On28 October 2009, the military police recovered the package from Canada Post without the acknowledgement. On 12 January 2010, themilitary police sent away the computer’s hard drive to ensure that no sensitive data could have been compromised.

On 17 February2010, the analysis was completed, and the results were negative. On 8 March 2010, the analysis was received by the military police. On7 July 2010, the investigation file was closed. On 31 May 2011, the investigation report was referred to the applicant’s commandingofficer. On 12 July 2011, the applicant was charged, and on 2 August 2011, while he was at the Canadian Forces Fleet School Québec, aRecord of Disciplinary Proceedings was served on the applicant. On 5 August 2011, the charge was referred to the referral authority.

On23 August 2011, the applicant received a remedial measure with respect to the alleged theft. On 25 August 2011, the applicant left tospend three weeks in Japan. On 20 September 2011, the applicant submitted his request for release from the Canadian Forces. On1 November 2011, the applicant was released from the Canadian Forces at his request. On 16 December 2011, a charge sheet was servedupon the applicant. On 16 January 2011, the applicant changed his defence counsel from a military lawyer to counsel Johnson-Bégin. [6]

Section 7 of the Charter reads as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [7] As indicated by the Court Martial Appeal Court in R v Langlois, 2001 CMAC 3, at para 7:

Section 7 protects the right to life, liberty and security of the person. This right is infringed when the person is deprived of it contrary tothe principles of fundamental justice. To determine whether there is a breach of s. 7 it must first be decided whether the individual hasbeen deprived of the right to life, liberty or security of the person; the relevant principles of fundamental justice must then be identifiedand defined; finally, it must be determined whether the deprivation has occurred in accordance with those principles. (R. v. White, (SCC), [1999] 2 S.C.R. 417, at 436.)

[8] The applicant must persuade the Court on a balance of probabilities that his rights or freedoms, as guaranteed by the Charter, havebeen infringed (see R v Collins, (SCC), [1987] 1 SCR 265). The applicant alleges first of all that his right to liberty wasinfringed. [9] Although counsel for the prosecution stated at the outset of his submissions that the pre-charge delay began on 20 October 2009, heargued that the investigation was not complete until the hard drive had been analyzed and received by the military police.

He indicatedthat the period of delay was 10.5 months; therefore, the pre-charge delay would have begun in July 2010 when the investigation file wasclosed. [10] It appears from the testimony of Mr. Massicotte and the statement of circumstances (Exhibit R1-2) that Mr. Massicotte admitted toa military police officer during his interrogation that he had taken the items. He also admitted this to Sergeant Gagné. Military policeofficers recovered the items on 28 October 2009, acting on the information that Mr.

Massicotte had provided during his interrogation.On 12 January 2010, steps were taken to obtain an analysis of the computer’s hard drive because it contained a number of files of interestand a certain amount of sensitive data. The hard drive analysis was completed on 17 February and received by the military police on8 March 2010. The investigation file was closed on 7 July 2010. [11] Exhibit R1-5 is a statement by Major Cadman, a military police officer, indicating that the police report was not transmitted to theaccused’s unit in July 2010 and that this was an administrative or procedural error.

He stated that the report should have been sent to theaccused’s commander to enable the unit to take any necessary disciplinary or administrative measures. There was a breach, and this runscounter to established military police standards. [12] No other evidence was produced concerning the military police investigation. There is no evidence to explain why the militarypolice waited until 12 January 2010 to request an analysis of the hard drive or why the file was closed on 7 July 2010 despite the resultsof the analysis having been received on 8 March 2010.

Moreover, it took almost 11 months to transmit the report to the accused’s unit,which can only be explained by incompetence on the part of the person or persons in charge of the investigation. The facts in this caseagain seem to indicate a lack of rigour in the investigation and administration of a seemingly straightforward file. [13] Even though it appears that a police report regarding the theft of the computer and the iPod could have been drafted in November2009, this report would not have been truly complete without an analysis of the hard drive.

The evidence does not explain why it took solong for this analysis to be requested. The analysis report was provided about a month after it was requested. The Court therefore findsthat the military police report could have been completed in December 2009 if the request for an analysis had been made promptly. Thereport could then have been transmitted to the accused’s unit in early 2010, either in January or February. The total pre-charge delay isabout 21 months, from 20 October 2009, to 2 August 2011.

It therefore appears from the evidence that the charges could have beenbrought in 2010, in February or March, if the military police had performed their work more efficiently. There was therefore anunwarranted pre-charge delay of some 17 months, between March 2010 and August 2011. [14] Although the case law clearly indicates that the period to be considered by the court in assessing whether a delay is reasonablebegins running from the time, according to the evidence, that the police investigation file contained sufficient elements to lay charges(see R v Kalanj (1989) (SCC), 1 SCR 1594 and R v Perrier,

(2000) CMAC-434), the case law also indicates that, inaddition to calculating the length of time, one must consider whether the accused has been prejudiced by the delay (see R v L.(W.K.) (SCC), [1991] 1 SCR 1091 and R v Langlois, 2001 CMAC 3, at para 6). [15] The Court will now consider the issues, starting with the allegations that the liberty of the accused was infringed. Both parties agreethat Mr. Massicotte was detained during his interrogation by the military police on the night of 20 to 21 October 2009. He was under thecontrol of the military police for approximately three and a half hours. Mr.

Massicotte had just admitted to Sergeant Gagné that he hadtaken the computer and the iPod. Sergeant Gagné informed the military police. It was to be expected that the military police would wishto interrogate Mr. Massicotte. The police officer informed him of his rights: see Exhibit R2-2. Although this was a restriction on hisliberty, it was brief and only lasted for the duration of the interrogation. The Court finds that the evidence does not show that thisdetention violates the principles of fundamental justice. [16] On 21 October 2009, Sergeant Gagné ordered Mr.

Massicotte to accompany him to Victoria to recover the Canada Postacknowledgement. Mr. Massicotte accompanied Sergeant Gagné to Victoria. The applicant alleges that this represents the secondobstruction to his liberty. While these actions appear instead to represent a situation in which a person in authority seemed to force him toincriminate himself, the evidence shows that this search was unsuccessful. Mr. Massicotte testified that he would have been on leave thatday. No other evidence was provided to the Court regarding Sergeant Gagné’s actions.

The Court does not know whether his actionswere the result of a request of the police or Sergeant Gagné’s own initiative. The Court finds that these actions did indeed infringe

Mr. Massicotte’s right to liberty, as well as his right against self-incrimination. However, this violation of his right to liberty is notconnected with an unreasonable pre-charge delay. [17] The applicant alleges that the pre-charge delay prevented him from moving to Japan and that this was also a violation of his right toliberty. Mr. Massicotte testified that he was passionate about Asia and held a bachelor’s degree in East Asian Studies. He testified that,from the time he was 20 or 22 years old, he has wanted to move to Japan and find work there.

He states that he was unable to act on thiswish because he had to wait until the disciplinary proceedings had run their course. [18] He testified that he had enrolled in the Naval Reserve in February 2009 at his parents’ suggestion because he had been unable tofind full-time work after completing his studies. During his cross-examination, he stated that he had lacked the financial means to go toJapan immediately after graduating. A career in the Naval Reserve was not his first choice; he would have liked to have been a marineofficer or pilot, but his colour blindness made this impossible.

He had no plans to build a career in the Naval Reserve and had no ideahow many years he would spend as a reservist. He probably would have worked elsewhere given the opportunity. It was a full-time job. [19] Although he states that this plan to live and work in Japan is so important to him, he has provided no evidence of any research hehas conducted or steps he has taken to make it happen.

He says that he sees the Naval Reserve as providing opportunities to travelabroad, giving the example of a person deployed to Sudan, but he does not know whether the Canadian Forces deploys its members toJapan. [20] He testified that he had left on 25 or 26 August 2011, to spend three or four weeks in Japan. During his cross-examination, he firststated that he did not have time to look for employment in Japan, and then he said that he had sent his CV to English schools. Noevidence was filed to this effect. [21] The Court is not convinced by the evidence that the pre-charge delay deprived Mr.

Massicotte of the opportunity to live in Japan.He did not file any evidence indicating that he had concrete plans to work in Japan or that he had taken the necessary steps to make suchplans a reality. It appears that the wait for the disciplinary proceedings and the service of the Record of Disciplinary Proceedings on2 August in no way prevented him from planning and taking a three-week trip to Japan in August and September 2011.

The Court findsthat the applicant probably has a keen interest in Asian culture, but the evidence presented does not demonstrate a genuine intention towork in Japan between 2009 and 2011. Therefore, the Court finds that his right to liberty was not violated. [22] Finally, it is well established in Canadian law that the right to liberty is at issue when a person faces charges for which a convictioncould lead to a sentence of imprisonment. A combination of imprisonment and absolute liability violates

section 7 of the Charter, (see ReB.C. Motor Vehicle Act, (SCC), [1985] 2 SCR 486, at paras 1, 2, 76 and 77).

Section 114 of the National Defence Act isnot an offence of absolute liability. The applicant has not provided any evidence indicating that the mere fact that

section 114 ispotentially punishable by imprisonment violates his right to liberty in breach of a principle of fundamental justice. [23] The evidence presented in relation with this motion shows that the applicant’s right to liberty was violated when Sergeant Gagnéordered him to accompany him to Victoria to recover the Canada Post acknowledgement. This violation of the right to liberty is not theresult of a pre-charge delay.

The only consequence of this violation was the fact that ex-Acting Sub-Lieutenant Massicotte was deprivedof one day of paid leave. [24] The applicant also alleges that procedural fairness is at issue because the unreasonably long delay affected his memory andtherefore had a detrimental effect on his ability to make full answer and defence.

He alleges that his memory is now defective and that hewill not be able to testify correctly during his motion alleging a violation of his right to counsel, which violates his right to make fullanswer and defence. [25] Following the submissions, a discussion and an adjournment to the following day, counsel for the applicant stated that he wantedthe Court to hear the evidence relating to the motion alleging a violation of the right protected by paragraph 10(

b) of the Charter beforerendering a decision on the first motion, since that evidence would be relevant to the first motion. Counsel for the prosecution agreedwith this suggestion, and the Court consented. [26] Mr. Massicotte testified that he remembered what he had done but did not remember specific times. He remembered how he feltwhen talking to Sergeant Gagné. He knew that the computer and iPod did not belong to him, and he wanted them to be recovered. Hetestified that he saw the situation as a game and that he believed it would be better to tell Sergeant Gagné everything. He remembered

that Sergeant Gagné had told him that he had shown courage in admitting that he had taken the items. He remembered waiting 20 to 30 minutes before meeting the military police officer. He also stated that he did not believe that the matter would be resolved this way, with a military police interrogation. [ 27 ] Mr. Massicotte testified that he was told that he was under arrest. He also testified that he told the military defence duty counsel that he was under arrest.

However, during his cross-examination, he was no longer certain of this and could not remember who had told him that he was under arrest, Sergeant Gagné or one of the police officers. He also testified that he did not feel like a prisoner, but rather like a detainee. [ 28 ] He testified that had told the military police officer that he wished to speak with an old friend of his who was a lawyer, Mr. Johnson-Bégin, after he had been read his rights. He tried unsuccessfully to reach Mr.

Bégin and ended up speaking instead with military defence duty counsel Lieutenant-Commander Létourneau. [ 29 ] He explained his situation to Lieutenant-Commander Létourneau, who told him to keep his mouth shut. He asked Lieutenant- Commander Létourneau to repeat his explanations, which the latter did. He said that he was dissatisfied with this advice and again asked to speak with Mr. Bégin. The military police officer again attempted to reach him at two different telephone numbers, without success.

He testified that the military police officer told him that this was not a criminal case but would be dealt with by his unit under the National Defence Act . [ 30 ] He testified that the military police left him alone and gave him as much time as he needed to write his statement, returning to the room from time to time to offer him water or extra paper. He stated that he hurried to write his statement and that the police officers then asked him certain questions and wrote down the answers. Following the interrogation, the police offered to bring him to the cafeteria, but he refused.

He was escorted to his room at about four o’clock. He testified that he would have used a computer to find Mr. Bégin’s telephone number if he had not been under pressure and stressed out during the interrogation. On cross-examination, he indicated that asking him whether he wanted water, food or paper was a way of pressuring him. [ 31 ] On cross-examination, he stated that he could not remember how often he had asked to speak with his old friend Mr. Bégin. He said that he could not remember the sequence of events and that he would have asked more questions to Mr.

Bégin, who would have done a better job of explaining his rights to him. He stated that he would not have provided a written statement because he had not understood that he was not supposed to talk. He said that he had told the officers that he had not understood Lieutenant-Commander Létourneau’s advice. Then he testified that it was possible that he had not asked to speak to Mr. Bégin after talking. Finally, he testified that it was possible that he had only asked to speak with Mr. Bégin after having spoken with Lieutenant-Commander Létourneau.

He testified that he had intended to cooperate with the military police before speaking with Lieutenant-Commander Létourneau, but that when the latter told him not to talk, he had become confused and had asked to speak with Mr. Bégin. [ 32 ] He testified that had looked in a Quebec telephone directory provided by the military police to find Mr. Bégin’s number. He testified that he had turned the pages of the directory and had found names associated with Mr. Bégin. Then he said that he could not remember who had looked in the telephone directory. He also stated that he had written Mr.

Johnson-Bégin’s name on a piece of paper and had given it to one of the police officers. The officer called Canada 411 to find the number. He could not remember whether he had been offered the opportunity to call a friend to find Mr.

Bégin’s telephone number, but he indicated that this was possible. [ 33 ] He stated several times in the course of his testimony that he had been naïve at the time of the interrogation, He also stated that he believed that [ translation ] “it was time to stop playing games” when he admitted to Sergeant Gagné that he had taken the items. [ 34 ] He testified that he had merely scanned Exhibit R2-2, the cautions prior to the interrogation, before signing them, and stated that he had not understood his rights at that time, despite indicating in the form that he had.

He asked the police officers to explain his rights again, which they did, and he described them as being kind. He had understood that he needed to speak with a lawyer. That was a [ translation ] “real yes” on the form. He therefore spoke with Lieutenant-Commander Létourneau. He testified that he had not understood his right to remain silent at the moment he had signed that form. He testified that he had felt the need to speak with someone he trusted after speaking with Lieutenant Commander Létourneau.

He testified that he had not understood the supplementary caution at the time, and then he said that he had understood. Then he testified that he had not understood the second part of that supplementary caution. [ 35 ] Master Seaman Thériault is not a military police officer, but he was working with the military police to provide physical protection for their unit. He acted as an interpreter during Mr. Massicotte’s interrogation. He was in an airport hangar in Vancouver with members of the military police when Sergeant Gagné informed them of Mr. Massicotte’s admission.

Corporal Agoston, a military police officer, prepared an interview room in the hangar. Master Seaman Thériault described Mr. Massicotte as being cooperative and somewhat

nervous. Master Seaman Thériault read Mr. Massicotte his rights in French, and Mr. Massicotte also read his rights before signing the form. Master Seaman Thériault testified that Mr. Massicotte had not indicated that he did not understand his rights. Mr. Massicotte had spoken privately with military defence duty counsel. Mr. Massicotte did not make any special requests. Mr. Massicotte told Master Seaman Thériault that counsel had advised him not to talk, but he nevertheless decided to continue. Mr.

Massicotte said that he was not sure about his decision and wished to speak with a friend who was a lawyer in Québec or Trois-Rivières. Corporal Agoston suspended the interview, and Master Seaman Thériault did a search with Canada 411. He found three or four numbers and dialled them. [ 36 ] Master Seaman Thériault believes that Mr. Massicotte called a friend to find Mr. Bégin’s telephone number. Mr. Massicotte decided to continue even though he had not been able to reach his friend. Master Seaman Thériault stated that Mr.

Massicotte had maintained a cooperative attitude throughout the interrogation, despite being nervous. [ 37 ] Mr. Massicotte stated that he remembered the events, but not the precise times or sequences; however, his testimony was quite specific and included several contradictions that were not chronological but rather were related to concrete actions such as looking in a telephone directory. He also had detailed memories of events such as his conversations with Sergeant Gagné. The Court finds that the evidence presented does not establish on a balance of probabilities that Mr.

Massicotte’s memory was affected by the passage of time to such an extent that his right to make full answer and defence is compromised. [ 38 ] Although this was not argued by the applicant, it is clear that his physical and psychological security were never threatened by the actions of his superiors during the pre-charge delay. His career advanced normally, he was given the opportunity to upgrade his skills through several courses, and he maintained his position as the unit’s logistics officer. [ 39 ] The Court finds that Mr.

Massicotte’s liberty was restricted by the actions of Sergeant Gagné on 21 October but that this violation was unrelated to the pre-charge delay and the consequences were minor and had no effect on the trial. The Court also finds that the right to make full answer and defence was not violated by the pre-charge delay. Therefore, the Court finds that the evidence fails to establish that the rights of the accused under

section 7 of the Charter were violated by the pre-charge delay. [ 40 ] For these reasons, the motion for a stay of proceedings under subsection 24(1) of the Canadian Charter of Rights and Freedoms for an alleged violation of the right to liberty and the right to make full answer and defence under

section 7 of the Charter is dismissed. Counsel: Major P. Doucet, Canadian Military Prosecution Service Counsel for Her Majesty the Queen S. Johnson-Bégin, Trois-Rivières Counsel for ex-Acting Sub-Lieutenant Massicotte