R. v. Derival, 2018 CM 4007

COURT MARTIAL Citation: R. v. Derival , 2018 CM 4007 Date: 20180413 Docket: 201760 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Leading Seaman K. Derival, Accused Before: Commander J.B.M. Pelletier, M.J. REASONS FOR FINDINGS (Orally) Introduction [ 1 ] Leading Seaman Derival is facing four charges under the Code of Service Discipline. He is charged with two counts of absence without leave contrary to

section 90 of the National Defence Act ( NDA ) in relation to two lengthy periods of allegedly unauthorized absence from his unit, separated by one day, 15 March 2017, when he was presumed to be attending his place of duty, namely a medical appointment at a civilian clinic. It is alleged that upon returning from the second period of alleged unauthorized absence on 3 April 2017, Leading Seaman Derival presented to a superior a forged form CF 100, CF Leave Request Authorization (CF 100), that he had signed, indicating that he had been authorized 33 days of sick leave from 3 March to 4 April 2017. For those acts he is charged under paragraph 125(

a) of the NDA for making a false entry in a document signed by him and is also charged under

section 130 of the NDA for uttering a forged document, contrary to subsection 368(1) of the Criminal Code . The evidence [ 2 ] The evidence consists of the oral testimony of the 10 witnesses called by the prosecution during the trial, the documents entered as exhibits, a joint statement of facts and the four witnesses called by the defence, including the accused. In addition, the Court took

judicial notice of matters covered by Military Rule of Evidence 15 and two specific publications authorized for military use under Military Rule of Evidence 16. [ 3 ] The prosecution witnesses outlined the narrative of how the alleged offences came to the attention of members of the chain of command at Leading Seaman Derival’s unit, Naval Fleet School Pacific, and the actions that were taken as a consequence. The first actor in that narrative was Master Seaman Jensen.

He testified that he was tasked in March 2017, as part of his usual duties in support of the administrative needs of the unit, to conduct a routine audit of annual leave remaining near the end of the fiscal year 2016-17. Indeed, remaining annual leave days must be brought for each member of the unit to as close as possible to zero before the next leave year begins on 1 April. In the course of that audit, he consulted a computerized personnel management tool named Monitor Mass (MM) which indicated that a number of members, including Leading Seaman Derival, had over five days of annual leave remaining.

He contacted these persons to inquire about their plans to use their leave before the end of the fiscal year. He spoke to Leading Seaman Derival, who expressed that he was on sick leave. As this would prevent taking annual leave, Master Seaman Jensen advised Leading Seaman Derival to ask a supervisor from his chain of command to contact him. Shortly afterwards, he received a call from Master Seaman Van Egmond who confirmed that Leading Seaman Derival was on sick leave until 4 April following surgery and that he should take what Leading Seaman Derival says with a grain of salt as he was on pain medication.

Master Seaman Jensen referred the matter to his superior at Campus Support Division, Petty Officer 1st Class Perreault, who testified next. [ 4 ] Petty Officer 1st Class Perreault told the Court that he contacted Leading Seaman Derival to clarify the annual leave situation reported to him. At that time, he did not know who Leading Seaman Derival was. He found his interlocutor to be difficult to understand and the call was interrupted before its completion.

On Monday, 3 April 2017, Petty Officer 1st Class Perreault phoned Leading Seaman Derival again and requested his attendance at the unit so he could provide documents explaining his situation, including leave authorization forms.

Later that morning, Petty Officer 1st Class Perreault obtained three sets of documents from Leading Seaman Derival, including a form filled out by a civilian clinic regarding a medical procedure Leading Seaman Derival undertook on 1 March 2017 and a CF 100 which indicated on its face that Leading Seaman Derival had requested and been authorized 33 days of sick leave by Lieutenant-Commander Sheppard on 28 February 2017, from 3 March to 4 April 2017.

Following the departure of Leading Seaman Derival from his office, Petty Officer 1st Class Perreault took a closer look at the documents submitted and noticed a number of discrepancies on the CF 100, including the fact that the manuscript signature dates on the form predated the date of the generation of the form, indicated by a date/time stamp appearing in small character on the top right corner of the printed form.

Preliminary verification seemed to indicate that the document had not gone through the appropriate or normal steps for approbation, including a missing signature for the recommending authority, and a signature which did not resemble the signature of the approving officer who would have signed above his signature block and who was not, in any event, authorized to approve such type of leave. Once Petty Officer 1st Class Perreault communicated his observations to his superiors, he was tasked with conducting a unit disciplinary investigation (UDI).

He also explained that the unit was undergoing a reorganization with the recent set-up of a campus support division responsible for the administration of students and personnel awaiting or taken off training.

However, it appears, from the testimony of Petty Officer 1st Class Perreault, that although Leading Seaman Derival should have been part of this campus support organization, he had been kept with the Marine System Engineer (MSE) Division until he was transferred under Petty Officer 1st Class Perreault’s responsibility on or about 3 April 2017. [ 5 ] The prosecution also called Chief Petty Officer 2nd Class Scalabrini, Lieutenant-Commander Sheppard and Lieutenant(

N) Pilkey who explained their involvement in the investigation and provided significant background as to the organization of Naval Fleet School Pacific, as well as explained the process for approval of leave, especially sick leave which requires interaction between the unit and medical authorities who must approve all sick leave of more than two days according to policies. These witnesses also elaborated on issues of management of military personnel in general and in particular as it pertains to personnel awaiting training or taken off training.

They also discussed the use of computerized tools such as MM and Human Resources Management System (HRMS), including their capacity to store information and produce documents such as forms required for leave requests and authorization. [ 6 ] Leading Seaman Morier and Leading Seaman Ross were called to testify as to their encounter with Leading Seaman Derival on 3 April 2017. Leading Seaman Morier assisted Leading Seaman Derival in generating and printing a CF 100 from his account in MM.

For his part, Leading Seaman Ross was working in the Regulating Office when Leading Seaman Derival came in with a CF 100 which required a stamp confirming that the member was not on duty in the period of requested leave, a standard procedure at the unit. Leading Seaman Derival asked him to roll back the stamp to 28 February 2017, which he did.

Leading Seaman Ross explained that he saw no harm in doing that at the time given that the stamp simply confirmed that the person requesting leave was not on duty which in this case could not be the case as the period of leave was largely in the past. [ 7 ] Former Chief Petty Officer 2nd Class Ayotte testified that he was the Chief of the MSE Division at Naval Fleet School Pacific at the time that Leading Seaman Derival was a Qualification Level 5 (QL5) student on course at the School and was taken off due to academic failure which resulted in a training review board (TRB) being conducted on 13 January 2017.

He explained that the management of personnel removed from course was in transition at the time since the implementation in July 2016 of a novel concept by which the administration of students would shift from the training divisions to a new division named Campus Support. He stated that Leading Seaman Derival should have been transferred to Campus Support upon approval of the conclusions of his TRB, but had no actual memory of that happening, nor when it would have happened, despite the fact that such a process was under his general responsibility.

He did say that it was his intention to transfer Leading Seaman Derival to Campus Support as soon as he was off course and said he assumed it was done as he had not seen Leading Seaman Derival near his office or the MSE Division spaces at the unit. He

knew that Campus Support personnel had made calls to locate Leading Seaman Derival in relation to a year-end leave audit sometime in March 2017. He explained his role in approving leave. However, he said he had seen the CF 100 that is the subject of this trial for the first time only in the course of the investigation.

He has no recollection of Leading Seaman Derival approaching him to obtain sick leave and did not sign the form next to his name appearing as the authority recommending the sick leave. [ 8 ] The prosecution also called Mrs Johnston and Major Cox, both working at the Canadian Forces Health Services Centre Pacific (CFHSC(P)), to testify about the process for approval of sick leave and their relation with unit authorities, both generally and specifically in this case, before and after the UDI had been initiated.

Detailed explanations were given regarding a computerized system keeping track of all medical information pertaining to members of the Canadian Armed Forces (CAF), the Canadian Forces Health Information System (CFHIS). They described the administrative procedures for patients undergoing surgery in civilian facilities and the administration of sick leave relating to such procedures. They both examined medical files from CFHIS pertaining to Leading Seaman Derival and found only two days of sick leave granted in relation to the surgery that Leading Seaman Derival was to undergo on 1 March 2017.

In the course of a pre-operation appointment on 23 February, a physician employed at CFHSC(

P) granted two days of sick leave in advance of the procedure, for the days of 2 and 3 March 2017. Otherwise, the CFHIS did not indicate any other sick leave granted or authorized in the period of March-April 2017. Admitted as to narrative only was the fact that the CFHIS indicated that a post-surgery appointment had been scheduled for Leading Seaman Derival on 6 March 2017 at the Care Delivery Unit (CDU), but that Leading Seaman Derival did not attend. [ 9 ] For its part, the defence called three witnesses. The first to testify was Chief Petty Officer 1st Class Robert, who was working at CFHSC(

P) in March 2017. He said it could be possible for a civilian doctor to speak to a member who had undergone surgery about the required sick leave, but that he did not know if this occurred with Leading Seaman Derival at the time of his surgery. [ 10 ] The second and third witnesses for the defence were Petty Officers 2nd Class Woodrow and Van Egmond. The first was one of the supervisors supporting the QL5 course Leading Seaman Derival was on in 2016-2017.

He recalled the TRB and the decision that was taken to remove Leading Seaman Derival from course, approved by the Commandant of Naval Fleet School Pacific on 20 January 2017. Although he was in contact with Leading Seaman Derival at the time and concerned for his well-being given the pressure he was then experiencing, he did not have personal knowledge of the moment when Leading Seaman Derival was taken off the course. He was simply told that Leading Seaman Derival was gone and employed elsewhere.

For his part, Petty Officer 2nd Class Van Egmond testified that he was involved in mentoring Leading Seaman Derival, amongst other duties. He mentioned receiving a call from Campus Support looking for Leading Seaman Derival to discuss a leave situation. As a result, he spoke to Leading Seaman Derival on the phone, but found him to appear “slow thinking”, which he assumed was due to medication, as he had understood that Leading Seaman Derival was resting at home following a surgical procedure.

He explained his role in the transfer of responsibilities for students removed from course from the MSE Division to the Campus Support Division in the February, March and April2017 time frame. He said that the transfer of Leading Seaman Derival took place around the 29th of March. [ 11 ] Finally, the defence called Leading Seaman Derival to testify. In a short direct examination he mentioned having very poor memory of the events of early 2017, as he was going through a stressful time, amongst other things by virtue of a court case in Halifax.

He said he attended surgery at one point but did not know he had a follow-up with the CDU at the CFHSC(P). However, he did attend a follow-up with his civilian doctor on 15 March 2017. He recalled having spoken to Petty Officer 1st Class Perreault who had asked him to report with documentation to justify his sick leave. He said he looked for but could not find his leave pass at home, so before seeing Petty Officer 1st Class Perreault upon arriving at the unit on 3 April, he went to see Leading Seaman Morier, a colleague, to obtain some help in locating the leave pass in MM.

He said he could not remember if he had seen the leave pass in MM at the time or if it was deleted. In any event, he created another leave pass, not without some difficulty, and set off to the various offices at the unit to obtain the required stamps and approval. He said he provided the leave pass to personnel at the Regulating Office and is adamant that he did not sign above Lieutenant-Commander Sheppard’s name. He admitted antedating the CF 100 to 28 February 2017, but could not explain exactly why or how.

On cross-examination, he was at time confused and provided a number of contradictory answers on a number of subjects. Assessment of the evidence The proper frame of analysis [ 12 ] The role of this Court is not to make a general judgement on the performance or character of Leading Seaman Derival or anyone else who is referred to in the narrative provided by various witnesses, but to come to findings by analyzing the actions of the accused in light of the charges before me, no less and no more. Presumption of innocence and proof beyond a reasonable doubt

[ 13 ] In this frame of mind as it relates to the charges, it is important to discuss the presumption of innocence and the standard of proof beyond a reasonable doubt, two notions fundamental to findings for Code of Service Discipline and criminal trials. [ 14 ] In this country, a person facing criminal or penal charges is presumed to be innocent until the prosecution has proven his or her guilt beyond a reasonable doubt. This burden rests with the prosecution throughout the trial and never shifts.

There is no burden on an accused to prove that he or she is innocent. [ 15 ] 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. [ 16 ] It is virtually impossible to prove anything to an absolute certainty, and the prosecution is not required to do so. Such a standard would be impossibly high.

However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. The Court must not find Leading Seaman Derival guilty unless it is sure he is guilty. Even if I believe that he is probably guilty or likely guilty, that is not sufficient. In those circumstances, I must give the benefit of the doubt to Leading Seaman Derival and find him not guilty because the prosecution has failed to satisfy me of his guilt beyond a reasonable doubt.

The assessment of credibility [ 17 ] In coming to conclusions on this case, the Court must assess the credibility of witnesses, especially of the accused, Leading Seaman Derival, who testified in his own defence. The findings I have to make will depend in part on the manner in which I assess his evidence, in light of the rest of the evidence. [ 18 ] The assessment of credibility turns on a myriad of considerations, some personal to the trial judge’s impressions born from experience, logic and an intuitive sense of the matter. The Supreme Court of Canada (SCC) said in R. v.

R.E.M. , 2008 SCC 51 , that “it may be difficult for a trial judge ‘to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.’” Indeed, “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” [ 19 ] In light of some comments made during arguments, it may be useful to discuss the guidance provided by the Court Martial Appeal Court (CMAC) in the case of Clark v.

The Queen , 2012 CMAC 3 , where the court has given clear guidance as to the assessment of the evidence. Justice Watt explained a number of principles starting at paragraph 40, including as follows: [40] First, witnesses are not "presumed to tell the truth".

A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced in the proceedings, unaided by any presumption, except perhaps the presumption of innocence: R. v Thain , 2009 ONCA 223 , 243 CCC (3d) 230 , at para 32 . [41] Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence.

The trier of fact may rely on reason, common sense and rationality to reject uncontradicted evidence: Aguilera v Canada (Minister of Citizenship and Immigration) , 2008 FC 507 , at para 39 ; R.K.L. v Canada (Minister of Citizenship and Immigration) , 2003 FCT 116 , at paras 9-11 . [42] Third, as juries in civil and criminal cases are routinely and necessarily instructed, a trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings. Said in somewhat different terms, credibility is not an all or nothing proposition.

Nor does it follow from a finding that a witness is credible that his or her testimony is reliable, much less capable of sustaining the burden of proof on a specific issue or as a whole. [ 20 ] I have assessed the evidence by looking first at reliability, specifically contradictions or corroboration by other evidence which may reveal defects in the witness’s ability to perceive, recall or communicate the evidence.

I have paid attention to any internal inconsistencies in the witness’s account of events and any lack of consistency in a witness’s account over time which may be considered to impeach credibility, but generally not to bolster it. I will have assessed external consistency with other evidence and the inherent

plausibility of the witness’s account, including any motive to lie or lack thereof. Finally, I have considered witnesses’ demeanour whilegiving testimony. [21] In arriving at credibility findings, it is important for me to be careful not to reverse the burden of proof. If this Court has areasonable doubt about Leading Seaman Derival's guilt arising from the credibility of the witnesses, then it must find him not guilty.Furthermore, in evaluating the impact of the accused’s testimony on the required findings, I am required to assess credibility using thefollowing method, as prescribed by Cory J. of the SCC in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, at page 758: (

a) if I believe the testimony of the accused, I must find him not guilty; (

b) if I do not believe the testimony of the accused but it leaves me with reasonable doubt, I must also find him not guilty; and (

c) even if the testimony of the accused does not leave me with any reasonable doubt, I must ask myself whether, based on theevidence which I accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Analysis The credibility and reliability of witnesses [22] As it pertains to the testimony of prosecution witnesses, I do feel that they were generally credible.

Although some were nervousand challenged by the task of testifying, they did not exaggerate the facts, admitted when their memory would not allow reaching firmconclusions and testified without demonstrating animosity towards the accused. Some witnesses had memory issues that drew concernfor the Court as to reliability, as is the case with Master Seaman Jensen who had to read his short statement on four occasions to refreshhis memory in relation to questions being asked.

Yet, on the important things in relation to this trial, I do not find that reliability orcredibility of prosecution witnesses to be important factors. [23] I have no significant concerns in relation to the credibility of defence witnesses, with the exception of the accused, LeadingSeaman Derival, whose testimony was ripe with confusion, contradictions, evasiveness and hesitation.

He often took significant time tooffer answers on cross-examination, even on most basic matters, when implausibility in his testimony was challenged by the prosecutor.On those occasions, he appeared to be thinking about what to answer to avoid further contradictions or appearing implausible. At onepoint, he even wondered aloud “how to explain this” when confronted about meeting the surgeon on 1 March and not 28 February. Hewas totally unreliable as it pertains to simple or uncomplicated details, even in direct examination.

As a consequence, I have developedsignificant doubt about the credibility of Leading Seaman Derival as I will explain in more details in the analysis pertaining to charge 4. The charge of absence without leave Essential elements to be proven [24] The first two charges of absence without leave cover two periods separated by one day.

They have been particularized in verysimilar terms, only dates differing, as follows: “In that he, at 0800 hours on 6/16 March 2017, without authority, was absent from the Naval Fleet School Pacific, Canadian Forces BaseEsquimalt, British Columbia, and remained absent until 0800 hours on 15 March/3 April 2017.” [25] The essential elements of these charges under

section 90 of the NDA for absence without leave are as follows: (

a) the identity of the accused;

(

b) the date, time and place of duty; (

c) the accused knew or should have known where and when the duty took place; (

d) the accused was absent; and (

e) the absence was not authorized (without leave). Position of the parties [ 26 ] As mentioned in a previous ruling on a non-prima facie application by the defence, the prosecution readily admits that there has been no direct evidence introduced as to the elements of date, time and place of duty. Yet the prosecution alleges that there is enough circumstantial evidence before the Court to allow me to infer that Leading Seaman Derival was absent from his unit in the period covered by the charges and should have known where and when he had to report, specifically to the Campus Support Division at NFSP.

In addition, the prosecution submits that the fact Leading Seaman Derival made and submitted a CF 100 covering the period of time targeted in the charges demonstrate that he was away from his unit and attempted to justify his absence.

As this attempt was made by the use of a false document, the prosecution submits I should find the accused guilty as charged. [ 27 ] For its part, the defence alleges, as done in arguing the non-prima facie motion, that there is insufficient evidence on the elements of date, time and place of duty, as none of the witnesses heard in the trial claimed administrative or leadership responsibilities for Leading Seaman Derival during the period covered by the charges.

In addition, the defence submits that there are other inferences that could be drawn to explain why none of the witnesses claimed to had seen Leading Seaman Derival at the unit during the period in question, amongst them the possibility that he had been given a form of unofficial leave or permission to stay home following his withdrawal from the classroom.

Issue [ 28 ] The key issue as it pertains to charges 1 and 2 is whether the prosecution has proven beyond a reasonable doubt the elements of date, time and place of duty, which is the first logical step in determining if someone is absent without leave (AWOL), leaving aside the element of identification that is rarely an issue in these kinds of charges. That step is inescapable in assessing any charge under

section 90 of the NDA . Analysis [ 29 ] Following submissions, I am left with the feeling that the prosecution is inviting me to infer from the other essential elements of the offence that the first element has been met. In other words, I am told the accused should have known he had been sent to the Campus Support Division, should have known where and when to report and because no one who testified is aware that he did in fact report, I have to conclude he was absent for the duration stated in the particulars of the charge.

As no one remembered providing permission for this absence, I have to conclude the accused was AWOL. [ 30 ] The inescapable conclusion that has to be reached after hearing the evidence is that for a period of time between the moment Leading Seaman Derival was taken off his QL5 course, sometime after the conclusions of a TRB had been approved by the CO on 20 January 2017, and him having been taken in charge by Petty Officer 1st Class Perreault at the Campus Support Division on 3 April, Leading Seaman Derival did not appear to be under the formal administrative responsibility of anyone.

I reach this conclusion because none of the witnesses claimed to have had that responsibility, even Petty Officer 2nd Class Van Egmond who had made some representations on Leading Seaman Derival’s behalf to Campus Support Division personnel for the year-end leave audit in March 2017. [ 31 ] Having reached that conclusion, it is not surprising that the prosecution has been unable to present direct evidence of any moment when Leading Seaman Derival would have been provided with direction, upon the very significant change in routine that his withdrawal

from the classroom entailed, as to where and when he was to report from that point on. As I found in dismissing the non-prima facie motion, there is some circumstantial evidence to the effect that Leading Seaman Derival would have been transferred to the Campus Support Division in the period covered by the AWOL charges and knew where and when to report to that organization. However, the evidence from the prosecution’s witness on that point is ripe with contradiction and uncertainties.

In fact, the testimony of prosecution witnesses was essentially stating where they would have expected Leading Seaman Derival to go or where he would normally have to go. This evidence does not have the degree of reliability to secure a finding that this element has been proven beyond a reasonable doubt as the issue is not what would normally happen with Leading Seaman Derival but rather what actually happened to him.

That required level of certainty was not reached by prosecution witnesses in testimony. [ 32 ] I do acknowledge that a member of the CAF may be expected to be at his or her unit or other place where he ought to be reached should he or she be required for duty. Yet, as explained in R. v.

Fedoryshyn , 2014 CM 4011 , at paragraphs 16 and 29 , a trial on an AWOL charge is not about whether the accused has failed to meet expectations, it is about whether the prosecution has proven beyond a reasonable doubt all of the elements of the offence of absence without leave on the basis of the particulars as they appear on the charge sheet.

That offence needs to be grounded in clear order or direction to be present for duty at a specific place on a specific time. [ 33 ] The prosecution suggests that the post-offence conduct of Leading Seaman Derival in submitting a leave pass to cover his alleged absence shows a guilty mind. I reject this suggestion. Leading Seaman Derival said he was on sick leave when responding to queries regarding his situation in March 2017 as well as during his testimony at trial. It is in that context that he submitted a leave request authorization form when requested on 3 April.

At that time, there were no allegations that he was away from the office illegitimately. In the circumstances, submitting a CF 100 cannot constitute an admission that he was AWOL, let alone an admission that would allow me to find beyond reasonable doubt that he was given a date, place and time for his duties following his withdrawal from the classroom environment. Conclusion [ 34 ] I am, therefore, left with a reasonable doubt on charges 1 and 2 for AWOL as to the elements of date, place and time of duty and therefore, the accused will be found not guilty of those charges.

The third charge of wilfully making a false entry in a document Essential elements to be proven [ 35 ] Turning now to the third charge laid under paragraph 125(

a) of the NDA for making a false entry in a document made by him that was required for official purposes. The particulars of that charge read as follows: “In that he, on or about 3 April 2017, at or near Canadian Forces Base Esquimalt, British Columbia, made an entry in a CF 100 (CF Leave Request Authorization Document) that he had 33 days of sick leave, knowing that information to be false.” [ 36 ] The essential elements of a charge under paragraph 125(

a) are as follows: (

a) the identity, date and place; (

b) the statement in the document was false; (

c) the accused made the document; (

d) the document was required for official purposes; and

(

e) the blameworthy state of mind of the accused as characterized in the particulars, namely wilfulness with respect to the falsity of the statement made. Position of the parties [ 37 ] The prosecution submits that in inputting 33 days of sick leave in the CF 100 on 3 April 2017, Leading Seaman Derival was essentially stating that he had been granted 33 days of sick leave, which was, on the evidence, untrue. Alternatively, the prosecution alleges that the making of the entire document is a willful false representation on the part of Leading Seaman Derival to his chain of command.

For its part, the defence submits that the statement regarding 33 days of sick leave is true as Leading Seaman Derival had been granted leave by a civilian doctor. Even if I were to find that no such leave had been granted, the defence submits that the accused honestly believed he had been granted that sick leave and, therefore, did not have the required intent to be found guilty.

Issue [ 38 ] As highlighted during submissions, that charge is causing me a concern as it pertains to the element of whether the statement on the document was false, simply on the basis of what it is exactly that has been stated by Leading Seaman Derival, in inputting 33 days of annual leave in that CF 100 on 3 April 2017.

Indeed, there seems to be a dichotomy between what the prosecution alleges to the effect that Leading Seaman Derival made an entry that he had 33 days of sick leave while the document, in its format, seems to suggest that 33 days of sick leave constitute leave that is requested by the person whose name and signature appear in a box titled “Requested by”, namely Leading Seaman Derival. In other words, by inputting Leave Type: “Sick Leave” and Total Requested: “33” days, was Leading Seaman Derival stating something false? Analysis [ 39 ] I believe the format of the CF 100 speaks for itself.

From any reading of it, one is left to conclude that what Leading Seaman Derival did, in making and then signing the form as being the requester, is state that he was requesting 33 days of sick leave. That statement has not been proven to be false. In fact, it appears to be true.

Consequently, the Court can only be left with a reasonable doubt as to the essential element of falsity of the statement, as the offence has been charged and particularized. [ 40 ] This is not to say that what Leading Seaman Derival did is right, especially if his representations to the effect that he had been granted sick leave by a civilian doctor are held to be not credible. His attempts to bolster his representations by making a CF 100 tending to show that such leave had indeed been granted when it was not the case may have constituted an offence.

Yet, the charge that the prosecution has chosen to lay and/or the particulars as drafted by the prosecution cannot lead to a conviction based on the facts of this case. Conclusion [ 41 ] Consequently, I am left with a reasonable doubt as to the essential element of whether the statement in the document was false in the circumstances of this case. The accused must be found not guilty of charge 3. The fourth charge of uttering a forged document Essential elements to be proven [ 42 ] Turning now to the fourth and final charge laid under

section 130 of the NDA for uttering a forged document contrary to subsection 368(1) of the Criminal Code . The particulars of that charge read as follows: “In that he, on or about 3 April 2017, at or near Canadian Forces Base Esquimalt, British Columbia, did knowingly use a forged document to wit a CF 100 (CF Leave Request Authorization Document), as if it were genuine, contrary to section 368(1) of the Criminal

Code .” [ 43 ] The essential elements of a charge under subsection 368(1) are as follows: (

a) the identity; (

b) the date and place; (

c) that the accused used a document; (

d) that the document was forged; (

e) that the accused knew or believed the document to be forged; and (

f) the blameworthy state of mind, namely intent to deceive.

Position of the parties [ 44 ] The prosecution submits that by giving the CF 100 to Petty Officer 1st Class Perreault on 3 April 2017, in an attempt to support the statements he had made to the effect that he was on sick leave until 4 April 2017 following surgery, Leading Seaman Derival used a forged document with intent to deceive Petty Officer 1st Class Perreault, that is to induce Petty Officer 1st Class Perreault to act on the CF 100 as genuine, thereby considering Leading Seaman Derival’s leave situation to be clarified to the prejudice of the Crown which had been without the service of Leading Seaman Derival for a number of days, from 3 March 2017 onwards. [ 45 ] The defence alleges that Leading Seaman Derival thought he was on sick leave previously granted by a civilian doctor.

By uttering the document, he was simply trying to replace a previous CF 100 which had been lost. That should have been obvious to anyone given the date of creation appearing at the upper right corner to the effect that it had been generated on 3 April 2017. Hence, the defence submits Leading Seaman Derival did not utter a false document and, in any event, had no intent to deceive. Issue [ 46 ] The essential elements of identity, date and place and the fact that Leading Seaman Derival used a CF 100 on 3 April 2017 are not contested.

The issues here relate to the last three elements, starting with whether the document was forged. If it was, it will be important to ensure that the accused knew the document was forged as it relates to the specific content allegedly forged. Finally, it will be important to determine if the accused had the required mens rea , that is whether he had an intent to deceive. Analysis [ 47 ] The first question to answer is whether the CF 100 used by Leading Seaman Derival on 3 April 2017 was a forged document. This requires first that the document be false, a notion defined at

section 321 of the Criminal Code as, amongst other things, “a document that is made by or on behalf of the person who purports to make it but is false in some material particular”. The evidence reveals that the

section of the form reflecting the date on which leave was “requested by” was inputted by hand as of 28 February 2017. Next to that date is the signature of Leading Seaman Derival, who admitted having actually signed the document on 3 April 2017. Therefore, the date leave was requested was backdated. The date that appears on the document is false. In addition, Leading Seaman Ross testified that he rolled back the date on one of the two rubber stamps stamped on the CF 100, at the request of Leading Seaman Derival. That is a second feature on that document that is false.

Consequently, I find that the CF 100 contained at least two false features that were made and included on the document by or at the request and collaboration of Leading Seaman Derival.

[ 48 ] I now need to determine whether these false entries were material to the document. As for the stamp, the backdating may have appeared innocuous for Leading Seaman Ross. However, if the stamp had read 3 April, it would have made the document look suspicious. In the circumstances, the stamp and its dates were material. As for dates accompanying the signatures, I observe from the form that a specific

section or box is provided for the dates of request and approval of leave, while there is no such box for the date of recommendation. This seems to indicate that those dates are material. In any event, in the context of this case, those dates were imminently material. Indeed, the statement that Leading Seaman Derival had made to representatives of the chain of command in the course or as a result of the March 2017 leave audit was that he was on sick leave.

Having been asked to come over to the unit and meet with Petty Officer 1st Class Perreault on 3 April to produce documents confirming that it was the case, he used the CF 100 which had to show dates relating to approval that were anterior to 3 April and close to the date of his surgery, in order to be credible. Therefore, I find that the alteration of date was material. Consequently, the CF 100 was a false document, made by Leading Seaman Derival. [ 49 ] It is not sufficient that the document be a false document as defined by

section 321 ; the document must also be made with an intention to deceive, namely that it be made with one of the intents specified in the Criminal Code , subsection 366(1). I find that it was the case here on the facts before me.

Indeed, by backdating the request for leave next to his signature as requester and obtaining that a stamp be backdated to 28 February, Leading Seaman Derival was intending for the document to be acted upon as if it had been initiated on 28 February, that is contemporaneous with his surgery, so that his statements to the effect that he had been on sick leave were found to be credible and generate the expected action of approval and confirmation of the leave in the required personal management systems such as MM and HRMS so that his situation was regularized with very little chance of being revisited.

As a result, Leading Seaman Derival would have been exempted from duty for that period of time to the detriment of the Crown. [ 50 ] I am fully conscious of the arguments of the defence to the effect that I should have a reasonable doubt as to whether it is Leading Seaman Derival who dated and added two “l” shaped figures above the signature block of M.I. Sheppard as approving authority.

Yet, I do not need to make a finding on this question as I believe that the offence of uttering a forged document was complete at the moment that the CF 100 was delivered to the personnel entrusted with the administration of leave with the signature of Leading Seaman Derival, the wrong date next to that signature and the wrong date on the stamp. In the circumstances, the approving authority was entitled to a true document when the date of the request is material as it is here. To be clear, I see no contradiction in this finding with my previous finding of not guilty on charge 3.

The false entry described in the particulars of that charge was not the date of the signature of the request. [ 51 ] In concluding as I do to the effect that the mental elements of this third charge have been met, I dismiss as non-credible the theory advanced by the accused to the effect that he had no intent to deceive by producing a CF 100 that was clearly a replacement for a leave pass that had been either lost or deleted. Indeed, I find this submission to be implausible and I reject it for the following reasons: (

a) First, the CF 100 document is presumed to mean what it states. Nowhere on the document is there a mention that it is a replacement leave pass nor is there evidence to the effect that Leading Seaman Derival mentioned to Petty Officer 1st Class Perreault that it was a replacement leave pass. Also, Leading Seaman Ross’s testimony was to the effect that he was simply asked to backdate his stamp, not told he was given a replacement leave pass. (

b) Second, I dismiss the suggestion that the mention of the creation date and time that appears in small font on the top right corner of the document when printed using MM constitutes a clear indication that the backdating was not concealed and indeed that the document was a replacement. Petty Officer 1st Class Perreault did not immediately notice anything wrong with the document. Several witnesses described the date of creation in relation to dates of signature as anomalies showing there was something wrong with the document.

Having had Leading Seaman Derival testify before me and witness his confusion in relation to almost all questions put to him as well as considering his testimony as to his state of mind at the time of the event, I find that he had omitted to consider that the backdating of the document could easily be discovered by the mention of the time generated in small font in the top right corner of the form. (

c) Third, I have considered the evidence I have heard as to the functioning of personnel management programs such as MM. In light of it, the affirmation of Leading Seaman Derival to the effect that he was granted sick leave by a civilian doctor, on a “leave pass” he could not find at home and went to locate in MM is full of contradictions and implausible: he was entirely unable in cross-examination to explain on what occasion he would have received that document.

The only possibility appeared to be at the moment of his surgery on 1 March, but then, not having attended the unit to provide the document since the operation, how could it, or any resulting leave pass, have been entered in MM or provided to him as a CF 100? Witnesses testified having examined personnel management systems, including medical personnel who examined the CFHIS, and finding no indication or document to the effect that sick leave would have been granted or authorized to Leading Seaman Derival, with the exception of the two days of leave mentioned already.

To be clear, I am not considering any opinion to the effect that sick leave would not have been required as a result of the surgery Leading Seaman Derival underwent on 1 March 2017. I find that it was possible that he had a discussion with the surgeon about time off work, but I do not believe that it was the case based on the evidence I just described as to what was found in files as well as the lack of credibility of the accused on that issue.

[ 52 ] In relation to charge 4, I do not believe the version of the accused. It does not leave me with reasonable doubt and I have no reasonable doubt concerning the guilt of the accused on the basis of the evidence which I accept. Conclusion [ 53 ] Consequently, I am left with no reasonable doubt as to all of the elements of the offence on the fourth charge. On 3 April 2017, at CFB Esquimalt Leading Seaman Derival did use a forged document that he had made and knew was forged to deceive members of his chain of command as to sick leave he said he had been entitled to. He must be found guilty of charge 4.

FOR THESE REASONS, THE COURT: [ 54 ] FINDS Leading Seaman Derival not guilty of charges 1, 2 and 3. [ 55 ] FINDS Leading Seaman Derival guilty of charge 4. Counsel: The Director of Military Prosecutions as represented by Major M.E. Leblond Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Leading Seaman K. Derival