R v Cyr, 2012 CM 3011

COURT MARTIAL Citation: R v Cyr , 2012 CM 3011 Date: 20120919 Docket: 201213 Standing Court Martial Canadian Forces Base Kingston Kingston, Ontario, Canada Between: Her Majesty the Queen - and - Sergeant J.S.F. Cyr, Applicant Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR THE DECISION ON THE ADMISSIBILITY OF THE ACCUSED’S STATEMENT DATED 12 OCTOBER 2010 (Orally) BACKGROUND [ 1 ] Sergeant Cyr is charged with stealing contrary to

section 114 of the National Defence Act , wilfully making a false statement in a document made by him and required for official purposes contrary to paragraph 125(

a) of the National Defence Act , improperly selling public property contrary to paragraph 116(

a) of the National Defence Act , and, lastly, an offence under

section 130 of the National Defence Act for possessing a prohibited device contrary to subsection 92(2) of the Criminal Code . [ 2 ] At the beginning of the trial before the Standing Court Martial on 10 September 2012, before denying or admitting Sergeant Cyr’s guilt on each of the counts, defence counsel representing Sergeant Cyr filed a motion for which written notice had been received by the Office of the Court Martial Administrator on 25 July 2012 and an additional motion for which written notice had been received on 24 August 2012, seeking an order from the Court Martial under subsection 24(2) of the Canadian Charter of Rights and Freedoms (hereafter the Charter) to exclude certain evidence on the basis of an alleged infringement of the accused’s rights under sections 8 and 9 and paragraph 10(

b) of the Charter. [ 3 ] This preliminary motion was presented under subparagraph 112.05(5)(

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

O) as a question of law or a question of mixed fact and law to be determined by the military judge presiding at the Court Martial as specified under

article 112.07 of the QR&O. [ 4 ] It is important to point out here that because of the range of the alleged violations and because of the prosecution’s stated intention to introduce five statements of the accused (two oral and three written statements) considered to be unofficial confessions

within the meaning of

section 42 of the Military Rules of Evidence , I decided to hear these arguments in three separate voir dires. The present decision concerns the first voir dire that I heard and deals with whether the written statement made by Sergeant Cyr in a memorandum dated 12 October 2012 was voluntary. [ 5 ] Moreover, with the parties’ agreement, in the same voir dire, I also heard the evidence and the arguments regarding the accused’s request to exclude this statement because of an alleged infringement of his right to retain and instruct counsel without delay and to be informed of that right under paragraph 10(

b) of the Charter . [ 6 ] The evidence produced in support of this motion consists of the following: (

a) The testimony of Master Corporal Duquette, Military Police officer, a Shift Supervisor with the Patrol

Section at the Valcartier Garrison’s Military Police Detachment and the person in charge of the investigation leading to the charges before this Court; (

b) The testimony of Mr. Durepos, who was the signals platoon commander of the 5 Canadian Service Battalion when the offences were allegedly committed; (

c) Exhibit VD1-1, the notice of motion received on 25 July 2012; (

d) Exhibit VD1-2, a set of photographs of the items seized at Sergeant Cyr’s home during the 1 and 3 November 2010 searches; (

e) Exhibit VD1-3, a memorandum from Sergeant Cyr dated 12 October 2010, addressed to the commander of the signals platoon, the subject of which is the return of the DeWalt tool kit; (

f) The judicial notice taken by the Court of the facts and matters contained in Rule 15 of the Military Rules of Evidence , and, more particularly,

article 24.01 of the QR&O, which deals with the reporting of casualties, and

chapter 24-1 of the Canadian Forces Administrative Orders entitled “Casualties - Reporting and Administration”. [ 7 ] In October 2012, Captain Durepos was employed both in the 5 Area Support Group and as signals platoon commander of the 5 Canadian Service Battalion. He was therefore responsible for the Quartermaster, where all the equipment used by the signals platoon was kept. [ 8 ] Captain Durepos explained that three DeWalt tool kits, used for signals platoon exercises and operations, were kept at the Quartermaster.

Occasionally, unit members were allowed to borrow certain tools for personal use for short periods of time. [ 9 ] At the time, until his transfer in late September 2010, Sergeant Cyr was the commander of the Quartermaster Section. Captain Durepos was aware that Sergeant Cyr was renovating his home. In fact, during the discussions regarding Sergeant Cyr’s transfer to another base, there had been talk of delaying the transfer as he was renovating and was going to get married. [ 10 ] In early October 2010, when Sergeant Cyr was no longer a member of the Quartermaster

Section because of his transfer, Captain Durepos learnt from Ms. Ulloch, a member of the Quartermaster Section, that the DeWalt tool kit Sergeant Cyr had borrowed could not be located. [ 11 ] It was reported to Captain Durepos that, upon Ms. Ullock’s insistence, Sergeant Cyr had signed a DND 638 Temporary Issue form on 21 July 2010. Captain Durepos learnt from his Quartermaster staff that Sergeant Cyr claimed that he had returned the tool kit when he was preparing to leave and that he had given it to Corporal Lachance. Corporal Lachance denied receiving the tools from Sergeant Cyr.

Moreover, it appears that the DND 638 form signed by Sergeant Cyr could not be found. [ 12 ] At the time, Captain Durepos thought that even a trustworthy person such as Sergeant Cyr could make a mistake once in a while and that nothing fishy was going on. However, he did find it unusual that the tools had not been found yet. [ 13 ] Captain Durepos therefore decided to initiate the loss report procedure, which entails obtaining a written explanation from the holder of the lost items and submitting this explanation to the unit chain of command to have the lost equipment removed from the unit’s inventory.

The unit can then obtain new equipment. The procedure also involves determining whether the person who borrowed the equipment should pay for the loss. At the time, Captain Durepos believed that it was a simple misunderstanding. [ 14 ] Captain Durepos therefore telephoned Sergeant Cyr on a work day to ask him to explain the loss and to obtain a written account.

He told the Court that the telephone conversation lasted 5 to 10 minutes and that it had been cordial: Sergeant Cyr had been at his workplace at the Kingston Base and had been cooperative. [ 15 ] In the days following the conversation, Sergeant Cyr emailed Captain Durepos a memorandum dated 12 October, in which he explained the circumstances of the loan and the return of the equipment to the Quartermaster; he also stated that he would accept responsibility for the loss if the equipment was not found. [ 16 ] Captain Durepos told the Court that this memorandum reflected the telephone conversation he had had with Sergeant Cyr. [ 17 ] Captain Durepos then verified whether the DND 638 form had been found, which it had been.

The form noted that the equipment had been returned, but no one had marked their initials next to this note. Moreover, a comparison with documents completed by Sergeant Cyr revealed that the note seemed to have been made by Sergeant Cyr himself, contrary to the customary, authorized practice. [ 18 ] At this point, Captain Durepos’s suspicion about the truth of Sergeant Cyr’s account of the circumstances of the loss of the tool kit was aroused. He concluded that the DeWalt tool kit could have been stolen by Sergeant Cyr.

He therefore decided to refer the matter to the Military Police for a disciplinary investigation and to suspend his own administrative investigation for the loss report.

[ 19 ] Counsel for the prosecution is of the opinion that this procedure, which resulted in a memorandum by Sergeant Cyr to Captain Durepos, is a simple administrative procedure the goal of which was to establish a loss report. This explains why Captain Durepos did not have to inform Sergeant Cyr of his right to retain and instruct counsel without delay and to be informed of this right under paragraph 10(

b) of the Charter . [ 20 ] The prosecution also submits that Captain Durepos was not a person in authority and that, consequently, there was no basis for the Court to analyze the voluntariness of an unofficial confession made by Sergeant Cyr.

However, if the Court did perform such an analysis, counsel for the prosecution submits that the confession was unofficial and was made voluntarily by Sergeant Cyr. [ 21 ] Counsel for the defence submits that, because of his rank and duties, Captain Durepos was a person in authority; as a result, the Court is required to determine whether Sergeant Cyr’s statement dated 12 October 2010, was made voluntarily. [ 22 ] The defence further submits that, since he was a person in authority and was attempting to obtain an incriminating statement from Sergeant Cyr, Captain Durepos should have informed Sergeant Cyr of his right to retain and instruct counsel without delay and to be informed of this right under paragraph 10(

b) of the Charter , which he failed to do. [ 23 ] In R v S.G.T. , 2010 SCC 20 , the Supreme Court of Canada defined the “person in authority” requirement, which obliges the prosecution to prove the voluntariness of an accused’s statement before it can be admitted into evidence. At paragraph 22 of the decision, Justice Charron, on behalf of the majority, wrote as follows: A person in authority is typically a person who is “formally engaged in the arrest, [page700] detention, examination or prosecution of the accused”: Hodgson , at para. 32.

Importantly, there is no category of persons who are automatically considered persons in authority solely by virtue of their status. The question as to who should be considered as a person in authority is determined according to the viewpoint of the accused. To be considered a person in authority, the accused must believe that the recipient of the statement can control or influence the proceedings against him or her, and that belief must be reasonable.

Because the evidence necessary to establish whether or not an individual is a person in authority lies primarily with the accused, the person in authority requirement places an evidential burden on the accused.

While the Crown bears the burden of proving the voluntariness of a confession beyond a reasonable doubt, the accused must provide an evidential basis for claiming that the receiver of a statement is a person in authority. [ 24 ] In the military, as I noted in the standing court martial of Corporal Wilcox regarding a similar issue, a person in authority is a person authorized to exercise his or authority over other members of the Canadian Forces because of his or her rank, duties or position in order to carry out any duty or mission.

Subsections 42(3) and (5) of the Military Rules of Evidence essentially reiterate the definition provided in the case law.

Just because a person holds a higher rank than another person does not automatically make the person with the higher rank a person in authority. [ 25 ] Has Sergeant Cyr therefore established that there is evidence that Captain Durepos was a person in authority when Sergeant Cyr stated and provided in writing his version of the facts in his memorandum dated 12 October 2010? [ 26 ] When he made his statement, Sergeant Cyr was no longer in the chain of command of the signals platoon of the 5 Canadian Service Battalion, and Captain Durepos was therefore no longer his superior because of the position he held.

In fact, it has been established that Captain Durepos was merely seeking to initiate an administrative proceeding regarding the presumed loss of the tool kit that had been borrowed and allegedly returned by Sergeant Cyr. [ 27 ] Sergeant Cyr did not demonstrate that he reasonably believed that Captain Durepos might be able to control or influence in any way any disciplinary proceedings against him.

The evidence demonstrates rather that Captain Durepos was not acting as an investigator of a Code of Service Discipline violation but does not demonstrate that he had the authority to prefer charges or to bring about the preferring of charges against Sergeant Cyr.

Although he was conducting a type of investigation, this investigation was strictly administrative and did not have the purpose of determining whether Sergeant Cyr should be charged with a Code of Service Discipline violation. [ 28 ] Since Sergeant Cyr was unable to discharge his burden of establishing that Captain Durepos was a person in authority when he made his written statement dated 12 October 2010, counsel for the prosecution did not have to demonstrate that the statement was voluntary. [ 29 ] As regards the admissibility of such a statement in the context of the present proceeding, the Court will only rule on this if the prosecution attempts to introduce it and the accused objects on the grounds that it does not comply with the applicable rules of evidence. [ 30 ] Lastly, regarding the alleged infringement of Sergeant Cyr’s right to retain and instruct counsel without delay and to be informed of this right under paragraph 10(

b) of the Charter , I must note that, as counsel for the prosecution so rightly said, Sergeant Cyr was neither under arrest nor detained when he made the statement in question. On the contrary, he was not in the same place geographically as the person he was speaking to, he answered his telephone voluntarily, and he discussed the matter willingly and unrestrictedly. [ 31 ] A person’s right to retain and instruct counsel without delay and the right to be informed of this right under paragraph 10(

b) of the Charter is triggered when the person is arrested or detained by an authority, as indicated by this provision, part of which reads as follows: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; . . . [ 32 ] Sergeant Cyr failed to demonstrate that he had been arrested or detained, and Captain Durepos was therefore not required to

inform him of his right to retain and instruct counsel. [ 33 ] Consequently, on this aspect, Sergeant Cyr’s motion is dismissed.

FOR THESE REASONS, THE COURT: [ 34 ] FINDS that the applicant failed to demonstrate that he was dealing with a person in authority when he made his written statement dated 12 October 2010 and that, consequently, the Court does not have to hold a voir dire to determine whether this statement was voluntary; [ 35 ] FINDS that the applicant did not demonstrate that he was under arrest or being detained, which would have given rise to a review of an alleged infringement of his right to retain and instruct counsel without delay and to be informed of this right under paragraph 10(

b) of the Charter when he made he made his oral and written statement to Captain Durepos on 12 October 2010; and [ 36 ] Therefore DISMISSES the motion on this aspect. Counsel: Major E. Carrier, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major E. Thomas, Defence Counsel Services Counsel for Sergeant J.S.F. Cyr