R. v. Mader, 2015 CM 3002

COURT MARTIAL Citation: R. v. Mader , 2015 CM 3002 Date: 20150205 Docket: 201314 Standing Court Martial Canadian Forces Base Trenton Trenton, Ontario, Canada Between: Her Majesty the Queen - and - Corporal G.G. Mader, Accused Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. REASONS FOR FINDING (Orally) [ 1 ] Corporal Mader is charged with one service offence punishable under

section 84 of the National Defence Act for having used violence against a superior officer; one service offence punishable under

section 85 of the National Defence Act for behaving with contempt toward a superior officer; and one offence punishable under subsection 116(

a) of the National Defence Act for wilfully damaging public property. Those offences relate to an incident that took place on 11 May 2012, in the office of the accused, on Canadian Forces Base (CFB) Trenton. [ 2 ] The evidence is composed of the following elements, in order of appearance, before the court: (

a) the testimony of Master Corporal Clemens; Master Warrant Officer (Retired) Rodrigue; Master Corporal Joy; Sergeant

Jouan; and Corporal Mader, the accused, before this court; (

b) Exhibit 3, four photographs of the office further to the incident on 11 May 2012; (

c) Exhibit 4, a copy of the Narrative by military police of a court appearance of Corporal Mader before Belleville Provincial Court; (

d) admissions made by the accused through his counsel for the purpose of dispensing with proof, any fact the prosecutor must prove regarding the essential elements about the identity, date and place for the three charges on the charge sheet; and (

e) the judicial notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence. [ 3 ] In May 2012, Corporal Mader, the accused in this matter, was a member of the Aircraft Maintenance Organization (AMO) Support Unit, which was part of 436 Squadron at 8 Wing, at CFB Trenton. His direct supervisor was Master Corporal Clemens and his office was located at 1 hangar. On 10 May 2012, Master Corporal Clemens told Corporal Mader that on that day he could not go to the gym before 2 p.m.

They both did their normal day of work and Master Corporal Clemens realized that in the afternoon, at about 1:30 p.m., Corporal Mader was not around. He then decided to go check on Corporal Mader at the gym sometime later. Around 3 p.m., Master Corporal Clemens went to the gym and found out that Corporal Mader had signed in at 2 p.m. and had, at the same time, signed himself as being out at 3:10 p.m. He then looked for him around the building, but he did not see him. He did not check in every place, such as the locker room.

Master Corporal Clemens knew about the type of car owned by Corporal Mader and he checked in the parking lot; he found Corporal Mader’s car and took the licence plate number to be able to confront him, if necessary. [ 4 ] The day after, on 11 May 2012, Master Corporal Clemens came to work around 7:10 a.m.; usually, the

section starts work at 7:30 a.m. At that time, he realized that Corporal Mader was not at work. He checked on the record where people are listed for having received authorization to be absent from work for any other reason, but he did not see the name of Corporal Mader. He then called his supervisor, Sergeant Peckham, and he learned that Corporal Mader went to the Medical Inspection Room (MIR). He checked on the phone voicemail of another sergeant, who was not present, and took the message left by Corporal Mader informing that he was going to the MIR that morning.

Master Corporal Clemens finally met Corporal Mader around 8:30 a.m., who was working in the SLOT, which is the space between the two hangars. Corporal Mader confirmed to Master Corporal Clemens his presence at the MIR that morning. Master Corporal Clemens told Corporal Mader to get back to the office and do his job. Corporal Mader then left the area and went to the office. [ 5 ] About 20 minutes later, Master Corporal Clemens went back to the office located in the mezzanine of 1 hangar. He saw Corporal Mader sitting on a chair doing nothing specific.

He then started to ask Corporal Mader where he was the day before; Corporal Mader replied that he had been at the gym. He said to Corporal Mader that he could not sign out before leaving the gym. He asked Corporal Mader to provide his licence plate number and it took some time for Corporal Mader to provide the one for the car he used the day before. [ 6 ] Essentially, Corporal Mader felt that his integrity, honour and ethics were seriously challenged by his supervisor.

From his perspective, he was on a temporary medical category, and a specific medical programme had been set for his return to work, including training at the gym. He provided the necessary paperwork to his chain of command and could not understand why he was questioned so closely about his whereabouts. [ 7 ] On that morning, Corporal Mader went to the MIR because he had some difficulty sleeping; he suffered from insomnia and fatigue. He explained that to the medical officer (MO), but he felt that he was not taken seriously, and was sent back to work with heavy medication.

It is in that context that, while being questioned by Master Corporal Clemens, Corporal Mader felt that he was verbally attacked on his character and became so angry that he was unable to verbally express any emotion. He wanted to put some distance between his supervisor and himself and to leave the office. He vented his anger and aggression on the furniture. [ 8 ] Master Corporal Clemens described Corporal Mader as becoming suddenly ballistic; that he went from zero to an explosion. He said that Corporal Mader stood up and threw the chair that he had been sitting on at him.

Corporal Mader said that he did not throw the chair, but that he pushed it to his right and it bounced off the wall, rebounding in the direction of his supervisor. Master Corporal Clemens told the court that Corporal Mader took the desk and started to move it and it fell apart. Corporal Mader said that he grasped the top of the hutch and started to push it, but he does not remember if it fell.

[ 9 ] Master Corporal Clemens said that Corporal Mader took another chair and smashed a computer with it; he then ripped a phone off of the wall. Corporal Mader denied having done such a thing. Master Corporal Clemens mentioned that he found a way to manoeuvre around Corporal Mader and that the latter followed him. As a supervisor, he told Corporal Mader to stay there, but he followed him to the top of the stairs. Corporal Mader told him that he was going to the MIR and then left. According to Corporal Mader, he is the one who first left the office, followed immediately by his supervisor, Master Corporal Clemens.

Corporal Mader remembered being told to stay, but replied by saying that he was going to the MIR, which he did. [ 10 ] Corporal Mader told the court that he did not remember the full event as, at some point, he blacked out. [ 11 ] Once Corporal Mader had left, Master Corporal Clemens called his supervisor, Sergeant Peckham, to tell him about what had just happened and to come see the state of the office. When he saw the office, Sergeant Peckham called Master Warrant Officer Rodrigue, who came and also saw the state of the office for himself.

He told Sergeant Peckham to take photographs of the office in the state as it was and asked him to lock it afterwards. [ 12 ] Later, on Monday, 14 May 2012, Master Warrant Officer Rodrigue met Corporal Mader in his office with Lieutenant Whyte. The purpose of the meeting was to find out about what happened and determine consequences, from an administrative point of view, for damages done to the furniture. Essentially, Corporal Mader told them that further to the questioning by Master Corporal Clemens on his whereabouts on the previous afternoon, he became upset for being checked up on.

He remembered that he pushed the upper shelf element and did not recall anything further to the time he left for the MIR. Essentially, he could not recall everything that happened at that time. He said that he blacked out probably because of the effect of the pills he got from the MIR.

The meeting concluded on the fact that Corporal Mader should be given a task with a very low stress level. [ 13 ] During the week after the incident, while Master Corporal Joy was passing some instructions to Corporal Mader, the latter told him that he did not feel comfortable being around Master Corporal Clemens and that he did not want to snap on Master Corporal Clemens again. [ 14 ] Sergeant Jouan came to court to testify about the material damage to the items. He said that a few days after the incident, he went to the room where they were kept.

He said that there was a LCD 20-inch monitor that had a scratch on the main screen and that it no longer worked when plugged in and turned on; a castor wheel on the work chair was not working, but the chair was usable; the hutch was broken; and the phone’s base had brackets broken, which left it in two pieces, but, nevertheless, functional. He said he had no idea of the state of those items prior to the incident and, except for the monitor screen, he did not have any idea of the exact loss and if things could be repaired.

They were returned to Crown Assets as they were considered property of the Canadian Forces. [ 15 ] Before this court provides its legal analysis, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamentals to all Code of Service Discipline and criminal trials.

And these principles, of course, are well known to counsel, but other people in this courtroom may be less familiar with them. [ 16 ] The first and most important principle of law applicable to every Code of Service Discipline and criminal case is the presumption of innocence.

Corporal Mader enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the prosecution, on the evidence put before the court, satisfies it beyond a reasonable doubt that he is guilty. [ 17 ] Two rules flow from the presumption of innocence: one is that the prosecution bears the burden of proving guilt and the other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted. [ 18 ] The burden of proof rests with the prosecution and it never shifts.

There is no burden on Corporal Mader to prove that he is innocent. He does not have to prove anything. [ 19 ] Now, what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[20] It is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to do so, such a standardwould be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than toprobable guilt. The court must not find Corporal Mader guilty unless it is sure he is guilty. Even if the court believes that he is probablyguilty or likely guilty, that is not sufficient.

In those circumstances, the court must give the benefit of the doubt to Corporal Mader andfind him not guilty because the prosecution has failed to satisfy the court of his guilt beyond a reasonable doubt. [21] The important point for the court is that the requirement of proof beyond a reasonable doubt applies to each of those essentialelements. It does not apply to individual items of evidence. The court must decide, looking at the evidence as a whole, whether theprosecution has proved Corporal Mader’s guilt beyond a reasonable doubt. [22] Reasonable doubt applies to the issue of credibility.

On any given point, the court may believe a witness, disbelieve a witness, ornot be able to decide. The court need not fully believe or disbelieve one witness or a group of witnesses. If this court has a reasonabledoubt about Corporal Mader’s guilt arising from the credibility of the witnesses, then it must find him not guilty. [23] The court has heard Corporal Mader testify. When a person charged with an offence testifies, the court must assess that evidenceas it would assess the testimony of any other witness, keeping in mind the instructions mentioned earlier about the credibility ofwitnesses.

The court may accept all, part, or none of Corporal Mader’s evidence. [24] It is one of those cases where the approach on the assessment of credibility and reliability expressed by the Supreme Court ofCanada in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, shall be considered, because Corporal Mader testified. [25] This test was enunciated mainly to avoid for the trier of facts to proceed by establishing which evidence it believes, the oneadduced by the accused or the one presented by the prosecution.

However, it is also clear that the Supreme Court of Canada reiteratedmany times that this formulation does not need to be followed word for word as some sort of incantation. The pitfall that this court mustavoid is to be in a situation as appearing, or in reality, to choose between two versions in its analysis. As recently established by theSupreme Court of Canada in its decision of R. v. Vuradin, 2013 SCC 38, at paragraph 21: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758.

The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. However, trial judges are notrequired to explain in detail the process they followed to reach a verdict: see R. v.

Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para.29. [26] Of course, if the court believes the testimony of Corporal Mader that he did not commit any offence charged, the court must findhim not guilty of it. [27] However, even if the court does not believe the testimony of Corporal Mader, if it leaves it with a reasonable doubt about anessential element of the offence charged, the court must find him not guilty of that offence. [28] Even if the testimony of Corporal Mader does not raise a reasonable doubt about an essential element of the offence charged, ifafter considering all the evidence the court is not satisfied beyond a reasonable doubt of his guilt, it must acquit. [29] About the evidence, it is important to say that the court must consider only the one presented in the courtroom.

Evidence is thetestimony of witnesses and things entered as exhibits, including photographs and documents. It may also consist of admissions. Theevidence includes what each witness says in response to questions asked. Only the answers are evidence. The questions are notevidence unless the witness agrees that what is asked is correct. [30] Corporal Mader is charged with using violence against a superior officer.

Section 84 of the National Defence Act reads asfollows:

Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment. [ 31 ] In addition to identity, the date and place of the offence, the prosecution had to prove beyond a reasonable doubt that: (

a) violence was used against a person; (

b) the use of violence was intentional; and (

c) the person was a superior officer. [ 32 ] In order to prove that the violence was intentional, the prosecution must prove that the accused intended to use violence against a person. When people intend to do things, they do them deliberately; it is different when people are careless and do things accidentally. When people do things accidentally, they do not intend to do them. [ 33 ] Concerning the essential element related to the person as being a superior officer, it has to be said that the expression “superior officer” is defined in

section 2 of the National Defence Act to mean: . . . any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member. In order to answer this question, that the court must decide the person against whom violence was used was a superior officer, it must consider first the rank, and if this person is of the same rank, the appointment which this person holds.

Finally, it is necessary for the prosecution to prove beyond a reasonable doubt that such status was known, or ought to be known, by the accused. [ 34 ] Corporal Mader is also charged with a count referring to behaving with contempt toward a superior officer, contrary to

section 85 of the National Defence Act . The purpose of this offence is to ensure minimal respect that shall exist in a military context between subordinates and superiors, in front of military members or not, with the idea of avoiding any kind of behaviour that would ultimately lead a subordinate to a state of disobedience that would affect cohesion and moral among Canadian Forces members at any level. [ 35 ] This offence is enunciated at

section 85 of the National Defence Act and reads as follows: Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment. [ 36 ] In addition to the identity of the accused and the date and place as alleged in the charge sheet, the prosecution must also prove each of the following additional essential elements beyond a reasonable doubt: (

a) Corporal Mader’s act or conduct amounted to contemptuous behaviour; (

b) the contemptuous behaviour was expressed to a superior officer; and (

c) Corporal Mader knew that the person to whom he expressed the contemptuous behaviour was a superior officer.

[ 37 ] In order for the act or conduct of the accused to amount to contemptuous behaviour, the prosecution shall establish beyond a reasonable doubt that Corporal Mader acted or conducted himself in a way that expressed some contempt, disregard, scorn, disdain, or disrespect toward Master Corporal Clemens or that he despised the latter. [ 38 ] Finally, subsection 116(

a) of the National Defence Act reads, in part, as follows: Every person who (

a) wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any public property, non-public property or property of any of Her Majesty’s Forces or of any forces cooperating therewith, … is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment. [ 39 ] The essential elements of the offence of wilfully destroying public property are: (

a) the identity of the accused as the offender; (

b) the date and place of the offence; (

c) the accused caused damage to a good; (

d) the good was public property; and (

e) the accused knew what he was doing and intended to do what he did. [ 40 ] Considering the admissions made on the identity, date and place for all the charges, and considering that the prosecution has established beyond a reasonable doubt that at the time of the incident, Master Corporal Clemens was a superior officer because of his appointment as a master corporal, that such status was well known by the accused, then the court is left with making a determination on a few essential elements on each charge. [ 41 ] This case is not a typical one where the story of the complainant and the one of the accused are totally opposed.

Essentially, the accused does not remember much of what happened during the incident. He wanted the court to know that he did not intend, in one way or another, to physically harm his supervisor. He did not deny having a physical reaction, but he wanted the court to consider that it was less than what was described by his supervisor. In assessing his evidence, the court may take all, some or nothing of it, as it is for other witnesses. However, the court does not see the necessity to take the formal approach described in R. v.

W.(D.) to decide on this case. [ 42 ] The court would add that all witnesses called by the prosecution testified in a calm and straightforward manner. They answered questions honestly and fairly and did not appear as having any interest in the outcome of the trial. [ 43 ] Concerning the second charge, which is having behaved with contempt toward a superior officer, the court must determine if the prosecution has proven beyond a reasonable doubt that Corporal Mader’s act or conduct amounted to contemptuous behaviour.

[ 44 ] As the supervisor of Corporal Mader, Master Corporal Clemens legitimately questioned the whereabouts of his subordinate. He did that in a calm and respectful manner and he insisted on getting the right answer. It may happen that a subordinate, in such circumstances, does not feel any confidence in his supervisor; however, no matter what personal feelings he might have had, those questions had to be answered by Corporal Mader, and it called for controlling his own emotions, which he did not.

He clearly explained in his testimony that he reached a point where he could not control his anger anymore in the circumstances and, in order to let his superior know about it, he took it out on the furniture around him to express it. [ 45 ] Such attitude, in such a context, clearly demonstrated a lack of respect and disdain toward Master Corporal Clemens.

Pushing and hitting things around in order to express his disapproval about the line of questioning taken by his direct supervisor on a working issue is clearly a sign of disrespect and does constitute contemptuous behaviour. [ 46 ] Corporal Mader’s attitude was expressed to his supervisor and he clearly knew his status as a superior officer.

From the court’s perspective, having regard to the evidence as a whole, the prosecution has proved, beyond a reasonable doubt, all essential elements of the offence of behaving with contempt toward a superior officer. [ 47 ] Now, with respect to the first charge, using violence against a superior officer, considering the admissions on the identity, date and place, and considering that the prosecution has established beyond a reasonable doubt that, at the time of the incident, Master Corporal Clemens was a superior officer and that such status was well known by the accused, the court is left with making a determination on two essential elements: (

a) violence was used against a person; and (

b) the use of violence was intentional. [ 48 ] The Concise Oxford Dictionary defines the word “violence” as a behavior involving physical force intended to hurt, damage, or kill. It is obvious for the court that the facts disclosed that Corporal Mader used physical force to damage goods that were within close range of him. [ 49 ] Corporal Mader delivered his testimony in a calm but not always straightforward manner. He was somewhat argumentative. His account of the events was consistent with itself.

He clearly stated that during the incident, he saw red, basically lost it, and still was unable to remember all he did during the incident. The court finds his testimony honest and sincere and does believe him when he said that he did not want to cause any physical harm to his supervisor during the incident. [ 50 ] His testimony raised a doubt on the fact that he used violence against a person in an intentional manner. It appears to the court that he did not direct his use of violence against Master Corporal Clemens. Even the testimony of the supervisor is unclear on this issue.

Master Corporal Clemens said that a chair was thrown at him and that he moved to his right to avoid it, that he had some fear because he did not know how it would turn out, but he never clearly mentioned that he felt threatened or that the physical reaction of the accused was aimed at him.

It is clear for the court that Corporal Mader started to push and hit things around him, but it is very doubtful that such behaviour was directed to hurt or harm his direct supervisor. [ 51 ] The court concludes that, having regard to the evidence as a whole, the prosecution has not proved, beyond a reasonable doubt, all essential elements of the offence of using violence against a superior officer. [ 52 ] Finally, concerning the third charge, again, identity, date and place were admitted, leaving the court to decide on three essential elements concerning this offence: (

a) Corporal Mader caused damage to a good; (

b) the good was public property; and

(

c) Corporal Mader knew what he was doing and intended to do what he did. [ 53 ] Reviewing the photographs, the Court noticed and observed that Corporal Mader’s physical harm impaired, at least to some degree, the usefulness and normal function of the monitor, the phone, the hutch, and the chair. However, according to the evidence, it is difficult to say to what extent he is responsible for it, not knowing the exact state of those goods prior to the incident, but it’s still clear for the Court that Corporal Mader caused some damage to those goods. [ 54 ] Are those goods public property?

The evidence before the Court is not entirely determinative on this issue. No inventory list establishing the holder or owner of those things was presented, and no evidence was adduced in order to provide their origin or who and how they were acquired. Mainly, the prosecution relies on the location of those goods, Canadian Forces Base Trenton, and the fact that a witness said that to his knowledge, they were belonging to the Canadian Forces, as sufficient evidence to prove that each good was public property. According to the Court, such evidence does not prove beyond a reasonable doubt that essential element.

It makes it possible, nothing more. [ 55 ] Finally, the facts of this case showed that Corporal Mader intended to do what he did. As he said, he expressed his anger physically and took it out on the furniture. He was not forced to do it and he knew what he did. However, in light of the totality of the evidence adduced in the proceedings, the Court concludes that the prosecution has not proved, beyond a reasonable doubt, all the essential elements of the offence of wilfully damaging public property.

FOR THESE REASONS, THE COURT: [ 56 ] FINDS Corporal Mader guilty of the second charge and not guilty of the first and third charges on the charge sheet. Counsel: Major A.-C. Samson, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major D.M. Hodson, Directorate of Defence Counsel Services Counsel for Corporal G.G. Mader