R. v. Scott, 2018 CM 2025

COURT MARTIAL Citation: R. v. Scott , 2018 CM 2025 Date: 20180912 Docket : 201822 Standing Court Martial Canadian Forces Base Borden Borden, Ontario, Canada Between: Her Majesty the Queen, Respondent - and - Sergeant E.R. Scott, Applicant Before: Commander S.M. Sukstorf, M.J. DECISION ON A MOTION BY DEFENCE THAT NO PRIMA FACIE CASE HAS BEEN MADE OUT ON ALL THE CHARGES (Orally) Introduction [ 1 ] Sergeant Scott is facing five charges, all contrary to

section 129 of the National Defence Act ( NDA ) for conduct to the prejudice of good order and discipline. The charges emanate from alleged incidents involving students under his supervision, while he was an instructor on two Primary Leadership Qualification (PLQ) courses held at the Royal Canadian Air Force (RCAF) Academy at Canadian Forces Base (CFB) Borden, Ontario. The first course was Serial No. 1603, held from 21 October 2016 until 21 December 2016. The second course was Serial No. 1604, held from 10 January 2017 until 1 March 2017.

The first three charges flow from Serial No. 1604 and charges 4 and 5 flow from Serial No. 1603. Each charge concerns a different candidate. [ 2 ] Pursuant to the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) subsection 112.05(13), at the close of the prosecution’s case, defence presented a motion he described as a bifurcated application.

[3] The first part of the motion argued that the prosecution failed to make out a prima facie case on each of the five chargesbefore the court. He submitted that the prosecution did not introduce evidence of an essential element of the offence; namely, theprejudice to good order and discipline arising out of the alleged conduct. [4] The second part of the motion relates to charge 4 which alleges that the applicant, at, or near the Canadian Forces BaseBorden, Ontario, did harass Corporal Carey. The applicant argued that the prosecution failed to establish that the alleged harassmentoccurred on a military establishment. He argued that the applicant is a reservist and pursuant to QR&O

article 102.01, NDA,

section 60,this court has no jurisdiction to try the applicant for charge 4 without proving the location of the alleged offence. The applicable law [5] In response to the motion, the prosecution relied primarily on case law relevant to directed verdicts set out by the SupremeCourt of Canada (SCC). He relies primarily on the test set out by Fish J., who delivered the decision in R. v. Fontaine, 2004 SCC 27 atparagraph 53 which was recently enunciated in R. v.

Barros, 2011 SCC 51, at paragraph 48 by Binnie J.: A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properlycharged jury acting reasonably, would justify a conviction: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, at paras. 1-4;R. v. Bigras, (Ont. C.A.), at paras. 10-17. Whether or not the test is met on the facts is a question of law which doesnot command appellate deference to the trial judge. [6] The test to be applied in courts martial is captured in Note (

B) to QR&O

article 112.05: (

B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essentialingredient such that the accused person could reasonably be found guilty at this point in the trial if no further evidence were adduced.Neither the credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case hasbeen established.

The doctrine of reasonable doubt does not apply in respect of a prima facie case determination. [7] In rendering a decision on a motion alleging that no prima facie case has been made out, the court martial must not weigh orassess the quality of the evidence on the essential elements of the charges. The test is whether there is some evidence, upon which aproperly instructed jury, might convict. Some evidence may in fact still be insufficient to establish guilt beyond a reasonable doubt.

Theburden of proof rests on the applicant to demonstrate, on a balance of probabilities, that a prima facie case on each of the charges has notbeen met. Issues [8] The two issues before the court: (

a) Firstly, this court must decide if the evidence, whether believed or not, would be sufficient to prove each and every essentialingredient such that the applicant could reasonably be found guilty at this point in the trial if no further evidence were adduced. Theapplicant specifically argues that the prosecution failed to adduce evidence of an essential element of the offence; namely, the prejudiceto good order and discipline arising out of the alleged conduct. He further argued that pursuant to subsection 129(2) of the NDA, that theprosecution presented no evidence that Sergeant Scott was made aware of the standard expected of him; and (

b) Secondly, the court must decide if the prosecution failed to prove it had jurisdiction over the applicant with respect to charge4 and if so, whether this failure provides grounds for a directed verdict. Analysis Conduct to the Prejudice of Good Order and Discipline

[ 9 ] With respect to the charges before this court martial, in order to convict the accused for any of the offences under

section 129 of the NDA, the prosecution must first prove the particularized alleged conduct beyond a reasonable doubt. Next, in the context in which the alleged conduct occurred, the prosecution must establish the blameworthy state of mind of the accused and that the consequence of the alleged conduct is prejudicial to good order and discipline. As the applicant noted, proof of prejudice is an essential element of the offence. [ 10 ] In deciding the motion on the first issue, it is helpful to review the elements of an offence under

section 129 of the NDA . Firstly,

section 129 of the NDA does not create two distinct offences. It is one offence (see R. v. Winters, CMAC 540). In fact, subsection (1) creates the offence itself and subsection (2) deems the conduct prejudicial when the conditions of subsection (2) are met. Subsections 129(1) and (2) read as follows: Conduct to the Prejudice of Good Order and Discipline Prejudicing good order or discipline 129

(1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment. Offence and contraventions prejudicial to good order and discipline

(2) An act or omission constituting an offence under

section 72 or a contravention by any person of (

a) any of the provisions of this 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. Is proof of knowledge required? [ 11 ] In practice, in order for the prosecution to rely upon subsection 129(2) of the NDA that deems conduct prejudicial, the prosecution must prove the accused’s knowledge or deemed knowledge of the provision, regulation, order or instruction allegedly contravened. In the case of R. v.

Korolyk , 2016 CM 1002 , Dutil, C.M.J. found subsection 129(2) to be valid, but found the presumption of deemed prejudice to be refutable. [ 12 ] The court heard evidence of Defence Administration Orders and Directives (DAOD) 5012-0 on harassment, on order that applies to officers and non-commissioned members (NCM) of the Canadian Armed Forces (CAF). However, the court notes that the particulars of the charges do not rely specifically upon the DAOD nor does it reference subsection 129(2).

It is distinctly possible that the prosecution does not intend to rely upon deemed prejudice flowing from a breach of the DAOD itself.

Nonetheless, it is important to stress that even where the conditions of proof set out in subsection 129(2) have not been met, it does not mean that there is no offence under subsection (1). [ 13 ] Pragmatically, although there is a requirement for the prosecution to prove the accused’s knowledge of a provision, regulation, order or instruction when the particulars allege a violation under subsection 129(2), requisite proof of knowledge of a standard of conduct is not required for other types of alleged conduct under a

section 129 offence. [ 14 ] The prosecution referred the court to R. v. Williams , 2017 CM 4016 where Pelletier M.J. acknowledged that the law with respect to both the proof of a standard of conduct and the accused’s knowledge of the standard of conduct changed with the R. v. Golzari, CMAC 587 decision. At paragraph 10(b), of the Williams decision, Pelletier M.J. wrote:

Indeed, the essential element of whether the neglect or conduct particularized in the charge is to the prejudice of good order and discipline was redefined to evacuate the previously adopted view that there were three things to be proven: a standard, knowledge of that standard and a conduct which breached that standard. In granting the appeal in Golzari , the CMAC reversed the trial judge’s decision to require proof of a standard. If the proof of the standard is no longer required, it flows that proof that the accused was aware of that standard, as part of the prejudice to good order and discipline element of the offence under

section 129, cannot be demanded. [ 15 ] At paragraph 68 in Golzari , the CMAC made it clear that the prosecution is not required to prove a standard of conduct as an essential element of a

section 129 offence. However, knowledge of a standard of conduct may still have evidentiary value. In order for the prosecution to prove an allegation set out in the particulars, it may knowledge of a standard of conduct may be required as an embedded criteria. For example, the facts of the case before me allege that the accused harassed 5 different individuals. The court notes that DAOD 5012-2 lists six criteria that must be met to prove that harassment occurred and one of the criteria is that the individual knew or ought to have known that the conduct in question would cause offence or harm.

This is a nuance requiring knowledge of a standard of conduct that is not a required element of the offence, however in order for the particulars to be proven, then some evidence is required. This nuance undoubtedly influenced the Applicant’s motion before the court. [ 16 ] Without weighing the evidence, the court did review it to determine if there was any evidence on this issue.

Pursuant to QR&O 1.21, not only did Sergeant Scott have deemed knowledge of the DAOD on harassment itself, but there was ample evidence available with Operation HONOUR and unit training, that if believed, provides evidence that he knew or ought to have known. Proof of prejudice to good order and discipline [ 17 ] Counsel for the applicant argued that although Chief Warrant Officer Marshall and Chief Warrant Officer Todd testified on the effects of harassment in their unit, they did not provide direct evidence of prejudice to good order and discipline that flowed from the alleged conduct.

Further, he acknowledged that the student witnesses were asked about the effects of the incidents and how they made them feel, but argued that the prosecution tendered no evidence of a breakdown or prejudice to discipline and good order. This part of the applicant’s submission is predicated on the belief that evidence must be presented to demonstrate that the conduct complained of did in fact result in prejudice to good order and discipline. [ 18 ] To support his argument of a requirement for the prosecution to provide evidence of prejudice, the applicant relied upon my decision in R. v. Rollman , 2017 CM 2005 .

In the Rollman case, at paragraphs 74 to 84 , I acknowledged that proof of prejudice is an essential element of the offence and must be proven beyond a reasonable doubt. [ 19 ] At paragraph 79 in Golzari , the CMAC stated that in most instances, the trier of fact in a court martial should be able to determine whether the proven conduct is prejudicial to good order and discipline based on their experience and general service knowledge. In Rollman , I interpreted this comment to mean that if a trier of fact wishes to rely upon its own experience and knowledge, it must be done in accordance with the law of evidence.

More specifically at paragraphs 79-80 in Rollman , I stated: [79] Much of the concern with the wider

interpretation advanced by the prosecution is the uncertainty that exists if the trier of fact relies upon his or her own subjective experience and general service knowledge in order to infer an essential element of an offence. An accused cannot be left in the unfair position of having to speculate on what fact, matter, custom or general military knowledge as evidence that the trier of fact might rely upon in order to convict him. An accused must have all the legal evidence adduced before him in court to ensure that he is given the opportunity to meet, explain or contradict this evidence and to determine on what grounds he should argue his defence. No

interpretation of the law may limit this principle. [80] As we know, a judge may only rely upon the evidence before the Court, whether real, testimonial, direct or circumstantial, etc., or evidence by way of judicial notice that meets the requirements of the MRE or the common law rules of evidence.

It is considered to be an error of law when a judge, through his or her own independent research and study, finds new information, or cases and without seeking submissions from counsel, he then applies them to the case before him. [81] The brief comment of Mosley J.A. must therefore be considered in light of the above principles. In the view of this Court, the obiter comment in Golzari made in the context of very different facts, is not a license for myself, as a trier of fact, to augment the evidence before the court, by relying upon my subjective general service knowledge and experience.

[ 20 ] However, I also made it very clear that the prosecution does not need to wrap up the evidence and label it as prejudicial for the trier of fact to infer prejudice. In other words, there must be some evidence before the court upon which the court may rely, in order to infer prejudice. In the evidence before the court, both counsel have referred to the CAF Harassment Policy set out in DAOD 5012-0 as well as Operation HONOUR.

With this specific evidence before me, the service knowledge I may apply is transparent and will be properly informed by these references that were in force at the time of the alleged offences. It is important to note that this type of evidence was completely lacking in the Rollman case and was the type of evidence I refused to impute. [ 21 ] Relying upon the CMAC decision in Golzari , the prosecution asserted that the Court heard ample evidence upon which it may infer prejudice to good order and discipline on the charges before the court.

Prosecution argued that prejudice will be proven beyond a reasonable doubt, so long as the totality of the circumstances supports the finding that the conduct in question would tend to or be likely to result in prejudice to good order and discipline (see Golzari , paragraph 77).

He noted that in Golzari , the CMAC clarified that prejudice is distinguished from a physical manifestation of injury to good order and discipline (see Golzari , paragraph 76). [ 22 ] In his submissions, the prosecution summarized the evidence of the numerous witnesses who testified and the Court noted that each witness provided testimony on the various consequences that flowed from the alleged conduct of the applicant.

The prosecution argued that the whole of the viva voce evidence, which included the testimony of the alleged victims and witnesses is of a type that may allow this court, as the trier of fact, to draw an inference that the alleged conduct would likely result in prejudice to good order and discipline. [ 23 ] More specifically, Chief Warrant Officer Marshall, who is the Commandant of the RCAF Leadership Academy testified on the prejudicial impact of harassment within the Academy, where the alleged incidents took place.

Chief Warrant Officer Marshall testified that harassment undermines trust, is contrary to teamwork, has second and third order effects and undermines morale. [ 24 ] In the Court’s assessment, the prosecution has tendered some evidence of prejudice to good order and discipline, upon which a properly instructed jury, properly instructed, might convict. Jurisdiction over the accused as a reservist [ 25 ] On the second issue, with respect to charge 4, the applicant submitted that the prosecution failed to prove that the court had jurisdiction over the accused.

Consequently, pursuant to subsection 112.05 (13) of the QR&O, the applicant argued that no prima facie case had been made out against the accused with respect to that charge. [ 26 ] In response, the prosecution argued that challenges to the jurisdiction of the court are to be raised as a plea in bar of trial pursuant to paragraph 112.24 of the QR&O. [ 27 ] In the court’s view, once a court martial formally begins and a plea is entered, there is a presumption that the court has the necessary jurisdiction to hear the charges.

As such, the prosecution is only required to prove the elements of the offences before the court. This is evidenced by the test set out by the SCC and embodied in Note (

B) to QR&O

article 112.05. Hence, the prosecution is not required to prove jurisdiction for every charge, as if it was an essential element of the offence. Once the court martial proceeded to hear the prosecution’s evidence, it was presumed that, absent evidence to the contrary, the court had the necessary jurisdiction to proceed. [ 28 ] The Court acknowledges, that there could be evidence that comes to light during the prosecution’s case which raises doubt on the presumption of jurisdiction.

However, at this point, the burden is on the defence to point to some evidence to suggest that the court does not have the necessary jurisdiction. [ 29 ] With respect to charge 4, the evidence suggests that Sergeant Scott was with his syndicate, at a drill hall, after completing an EC for military drill, within the parameters of the course

schedule and in his capacity as an instructor. At this stage, based on the evidence before the court, there is no evidence to suggest that Sergeant Scott was not in uniform or on a defence establishment. Further, the court heard no evidence to suggest Sergeant Scott was not operating in the performance of his duties. Since this issue is being raised at the end of the prosecution’s case, in order to overcome the presumption of jurisdiction upon which the court proceedings began, the applicant must point to some evidence for the court to consider. Conclusion

[ 30 ] This Court finds that a prima facie case has been made out in all the charges before the court, and so directs that the trial proceed on all five charges. FOR THESE REASONS, THE COURT: [ 31 ] DISMISSES the motion. Counsel: The Director of Military Prosecutions as represented by Major G.J. Moorehead and Captain C.R. Gallant Major A. Bolik and Captain A. Vitsentzatos, Defence Counsel Services, Counsel for Sergeant E.R. Scott