R v Salmond, 2012 CM 4016

COURT MARTIAL Citation: R v Salmond , 2012 CM 4016 Date: 20120913 Docket: 201204 Standing Court Martial Canadian Forces Base Edmonton Edmonton, Alberta, Canada Between: Her Majesty the Queen - and - Private M. Salmond, Accused Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR FINDING (Orally) [ 1 ] The accused, Private Salmond, is accused of having negligently used a 9-millimetre pistol to strike a cargo strap, causing a round to be discharged from the pistol and thereby causing bodily injury to himself. This charge was laid under

section 127 of the National Defence Act . [ 2 ] Before this court provides its analysis of the evidence and of the charge, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt. Although these principles are well known to counsel, other people in this courtroom may be less familiar with them. [ 3 ] It is fair to say that the presumption of innocence is most likely the most fundamental principle in our criminal law and the principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence.

In matters dealt with under the Code of Service Discipline, as the cases dealt with under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each element of the offence beyond a reasonable doubt. An accused person is

presumed innocent throughout his or her trial until a verdict is given by the finder of fact. [4] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces ofevidence that make up the prosecution's case, but to the total body of evidence upon which the prosecution relies to prove guilt. A courtmust find an accused person not guilty if it has a reasonable doubt about his or her guilt after having considered all of the evidence. [5] In R v Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model chart onreasonable doubt.

In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy orprejudice; it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on whatevidence tells the court, but also on what that evidence does not tell the court.

The fact that a person has been charged is no wayindicative of his or her guilt. [6] In R v Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, at paragraph 242, the Supreme Court held that: ... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than toproof on a balance of probabilities. On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is notrequired to do so. Absolute certainty is a standard of proof that does not exist in law.

The prosecution only has the burden of proving theguilt of an accused person, in this case Private Salmond, beyond a reasonable doubt. To put it in perspective, if the court is convinced orwould have been convinced that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable orlikely guilt is not proof of guilt beyond a reasonable doubt. [7] Having instructed myself as to the onus and standard of proof, I will now turn to the questions in issue put before the court.

Theevidence before this court martial is composed essentially of the following: judicial notice, the testimony of witnesses, admissions, andexhibits. Judicial notice was taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence. Nine exhibitswere produced by the prosecution and the defence counsel presented one exhibit. Admissions are found at Exhibit 13.

The prosecutionpresented five witnesses during the trial: Master Corporal Price, Warrant Officer Galarneau, Warrant Officer Fraser, Master CorporalCowell, and Corporal McLean. [8] The court must decide what are the facts in this case. The court determines the facts and decides if Private Salmond has beenproven guilty beyond a reasonable doubt or if he is not guilty of the offence. The court makes these determinations and that decisionfrom all of the evidence it has heard and seen during the trial.

There is no more evidence and it must consider nothing else. [9] The particulars of the charge read as follows: "In that he, on 14 August 2011, at or near Kabul, Afghanistan, did negligently use a 9-millimetre pistol to strike a cargo strap, causing around to be discharged from the pistol and thereby causing bodily injury to himself." The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt: (

a) the identity of the accused as the offender and the date and place as alleged in the charge sheet; (

b) that Private Salmond used a 9-millimetre pistol to strike a cargo strap; (

c) that this use of the 9-millimetre pistol caused a round to be discharged from the pistol;

(

d) that Private Salmond caused bodily injury to himself as a result of this discharge; (

e) that this conduct showed a marked departure from the conduct of a reasonable person in the circumstances; and (

f) whether Private Salmond had the requisite capacity to appreciate the risk flowing from his conduct. [ 10 ] Private Salmond was deployed to Afghanistan in April 2011 and he completed a full tour. He was employed as a driver in the force protection platoon. The weapons status at the time of the incident was Amber; this means that a magazine was in the pistol, but it was not at the ready, which means a bullet was not supposed to be in the chamber. On 14 August 2011, he drove a truck carrying ammunition to the ammunition supply point at Camp Phoenix. Camp Phoenix is located in Kabul.

Private Salmond and his co-driver, Corporal McLean, climbed on the back of the truck and began to remove the cargo straps that secured the ammunition. Private Salmond was having trouble with one strap. He used his 9-millimetre Browning pistol to hit that strap. The pistol fired one bullet and Private Salmond was wounded in the right hand side of his groin. [ 11 ] Private Salmond's video recorded interview with investigators of the Canadian Forces National Investigative Service was accepted as evidence.

Private Salmond initially did not tell the truth to the CFNIS investigators, but he ultimately did state that he did not have a round in the chamber and that he had not cleared his weapons when he arrived at Camp Phoenix. He admitted that he had hit the strap with the front part of his pistol. [ 12 ] The identity of the offender, the time and place of the offence, that Private Salmond used his 9-millimetre pistol to strike at a cargo strap, that a shot was fired by Private Salmond's pistol, and that Private Salmond was injured by that pistol are not in issue.

The evidence before this court also proves these elements of the offence beyond a reasonable doubt. [ 13 ] Did Private Salmond's use of the 9-millimetre pistol cause a round to be discharged from the pistol? The prosecutor argued the dangerous thing was the loaded 9-millimetre pistol and the negligent act was hitting a cargo strap with the loaded pistol.

Therefore, for the purposes of this offence, it is irrelevant whether Private Salmond was hitting the straps of a load of water bottles or of a load of ammunition since it is the discharge of the 9-millimetre pistol that caused the bodily injury. [ 14 ] The prosecutor stated the court should accept Private Salmond's assertions that his pistol did not have a bullet in the chamber before he hit the strap with his pistol. He queried whether a reasonable person would use a loaded pistol to strike a cargo strap.

He further argued that had Private Salmond not used the pistol to strike the cargo strap, the pistol would not have discharged. The prosecutor would thus want the court to infer that a bullet was inserted in the chamber and the pistol somehow discharged that bullet because Private Salmond had hit the strap with the pistol. [ 15 ] In this the only reasonable inference to be drawn from the proven facts? An inference is a much stronger kind of belief than conjecture or speculation. If there are no proven facts from which an inference can be logically drawn, it is impossible to draw an inference.

At best the court would be speculating or guessing; a court may not do that. [ 16 ] Defence counsel argued the prosecution presented no evidence to demonstrate that the pistol and the ammunition were functioning correctly. He also argued there was not evidence to prove that hitting the strap caused the pistol to chamber a round. Private Salmond had fired his pistol on a range on 20 June 2e011. It would thus appear the pistol was working normally on that date. Private Salmond had participated in TOET training on a weekly basis before the incident. [ 17 ] What are the proven facts to base the inference?

Private Salmond did not state in his interview that he had inserted a round in the chamber by using his pistol in the manner he did; he stated that he had been thinking about it since the incident and he thought it might have occurred in that manner. No other evidence has been provided to the court to explain how a round would have made its way in the chamber. [ 18 ] Simple common sense tells one that a pistol cannot fire a round if that round is not in the chamber.

Common sense would also indicate that since a round was not in the chamber before Private Salmond used his 9-millimetre pistol to strike the strap, his actions of taking the pistol in his hand and of hitting the strap with the front part of the pistol would be the only physical actions that led to the bullet being inserted in the chamber.

[19] The court does not believe simple common sense can be the only basis for an inference that only Private Salmond can beresponsible for the discharge of the bullet. While the court was informed that Private Salmond did participate in a live range and wasproficient with the TOETs of the pistol, the court was provided with very little evidence on how a pistol actually functions and, moreimportantly, how it does actually fire a bullet, nor was it asked to take judicial notice of this. [20] Master Corporal Price testified Sergeant Bigelow tested the pistol in their office after the incident.

She stated it appeared it didnot need much force to push the slide backward. Master Corporal Price also testified she was not familiar with the 9-millimetreBrowning since her service weapon was a different type of 9-millimetre. The court does not find Master Corporal Price's testimonyconcerning Sergeant Bigelow's test on the 9-millimetre to be reliable and does not give it any weight. [21] The court cannot, based on the evidence presented by the prosecution, infer that Private Salmond's actions are the sole reasonsthe pistol discharged a round.

Notwithstanding this conclusion, the court will continue with its analysis of this offence. [22] As stated in R v Creighton, (SCC), 83 C.C.C (3d) 346 (S.C.C.), at paragraph 46, "The law does not lightly branda person as a criminal." Also as stated in R v Beatty, 2008 SCC 5, para 6: ... conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penalnegligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence.

Unlike civilnegligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviatesfrom the norm, which establishes the actus reus of the offence, but with the offender's mental state. The onus lies on the Crown to proveboth the actus reus and the mens rea. [23] A marked departure from the standard of care of a reasonably prudent person in the circumstances must thus be proven by theprosecution.

The accused must be acquited if a reasonable doubt exists either that the conduct in question did not constitute a markeddeparture from that standard of care or that reasonable precautions were taken to discharge the duty of care in the circumstances. TheSupreme Court of Canada has also recognized that certain activities may impose a higher de facto standard than others. This standardflows from the circumstances of the activity and not from the characteristics of the accused, (see R v Day, 2011 CMAC 3, at paragraph12). [24] What is the standard of care of a reasonable prudent person in the circumstances?

It would appear from the prosecutor'sarguments that the reasonably prudent person would not use a loaded pistol to strike at a cargo strap. Most people would surely find thistype of activity quite stupid and dangerous. Warrant Officer Galarneau was quite surprised when he saw Private Salmond use his pistolto hit the cargo strap. Weapons are meant to be used for their specific purpose and soldiers are trained accordingly. Private Salmondstated during his interview with the NIS that he was tired and frustrated when he hit the strap with his pistol.

The court concludes areasonable person in the circumstances of Private Salmond would not have use a loaded pistol to strike at a cargo strap. [25] Did his conduct show a marked departure from the conduct of a reasonable person in the circumstances? Warrant Officer Frasertestified that Private Salmond had received training on the weapons handling drills of the 9-millimetre pistol to ensure he was proficienton the weapon. TOETs were also part of this training; TOETs involved training on the immediate actions of the weapon.

WarrantOfficer Fraser testified he was never concerned with Private Salmond's ability with his pistol. Notwithstanding this, the court was notprovided with more precise evidence on the TOETs and the training on the 9-millimetre pistol given to Private Salmond. [26] The evidence before the court does not tell the court how simple and easy or how difficult it is to load a round in the chamber ofa 9-millimetre pistol.

As mentioned previously, the court was not provided with much evidence on how a pistol actually functions and,more importantly, how it actually fires a bullet, nor was it asked to take judicial notice of this. [27] The evidence before this court is not sufficient to permit the court to determine if Private Salmond's actions are a mere departureor a marked departure from the standard of care. The evidence leaves the court with a reasonable doubt on this element of the offence. FOR THESE REASONS, THE COURT:

[ 28 ] FINDS Private Salmond not guilty. Counsel: Major R.D. Kerr, Canadian Military Prosecution Services Co-counsel for Her Majesty the Queen Captain K. Lacharité, Canadian Military Prosecution Services Co-counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Private M. Salmond