R. v. Cadieux, 2016 CM 4012

COURT MARTIAL Citation: R. v. Cadieux , 2016 CM 4012 Date: 20160608 Docket: 201575 General Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Corporal S. Cadieux, Accused Before: Commander J.B.M. Pelletier, M.J. REASONS AND DIRECTION REGARDING A DEMONSTRATION AT A VIEW BY THE COURT (Orally) INTRODUCTION [ 1 ] On 6 June 2016, the day proceedings of this General Court Martial commenced at the Canadian Forces Base (CFB) Petawawa in accordance with the convening order, the prosecution applied to the military judge for an order authorizing a view and a demonstration at the view, in accordance with

section 190 of the National Defence Act ( NDA ). The application was not opposed by defence, which was in fact consulted extensively on the purpose for the demonstration at the view and the details of how it was to be conducted.

In effect, the defence consents to the demonstration at the view to be conducted within those parameters. [ 2 ] Essentially, the object of the application is for the members of the court, including members of the panel, to be taken to a location and under conditions which are unrelated to the commission of the alleged offence, simply to observe individuals and targets, illuminated with glow sticks and lasers, through night vision goggles (NVGs), at various distances and in a night setting.

In that sense, what is being requested is a combination of a view and a demonstration, albeit a demonstration in which members of the panel of the court take an active part. The stated purpose of the demonstration at the view is to provide the court with a baseline experience of the

operation and capabilities of NVGs which will offer appropriate context for the understanding and weighing of other evidence, including the evidence of witnesses. [ 3 ] I held a voir-dire , which included a view of the proposed location for the view and demonstration. Following oral arguments by both counsel, I granted the application and ruled that the demonstration on the view would be conducted, with brief reasons and direction to follow. Here are those reasons and my direction as to the conduct of the demonstration at the view. REASONS FOR DIRECTING THE DEMONSTRATION AT THE VIEW A.

The facts [ 4 ] The evidence on the application was provided through admissions and an Agreed Statement of Facts produced as Exhibit VD1-3. Essentially, the sole charge in this trial alleges that on 10 September 2014, in the course of a night-time, live-fire training exercise, Corporal Cadieux negligently fired his C-8 rifle, striking Corporal Vautour. The facts relevant to the events of 10 September 2014, for the purpose of this application, are as follows: (

a) At the time he fired his weapon, Corporal Cadieux was wearing night vision goggles (NVGs) of type F5050, as were all other participants in the exercise; (

b) All members of the detachment present at the exercise were each wearing two activated infrared (IR) glow sticks, also referred to as IFF (Identification Friend or Foe), one attached to each upper arm. All members of the range staff were each wearing one activated glow stick emitting regular red light, affixed to the rear of their helmet; (

c) Weapons used by the participants in the exercise were equipped with laser designators emitting infrared light visible to NVGs. The laser designators were used by participants when engaging targets; and (

d) The distance travelled by the round which struck Corporal Vautour was more than 50 metres. [ 5 ] Furthermore, it has been jointly submitted that observing through NVGs is uncommon. It cannot be taken for granted that the members of the panel have had the experience of observing through NVGs. Even if they had, they may not have employed the same NVGs than those employed by the accused at the time of the alleged offence.

Different NVGs will have different capabilities and limitations. [ 6 ] Observing through NVGs inside a building or outdoors produces experiences that are significantly different from one another, especially light conditions and distances that cannot be replicated in the confined setting of a courtroom. Pictures or videos taken using night vision cameras are significantly different from what one can see through NVGs, as they do not allow for proper appreciation of distances. B.

The applicable law [ 7 ] I agree with the submission of the applicant to the effect that, within the court martial system, the conduct of a view, which may or may not include a demonstration at the view, is governed by

section 190 of the NDA ,

article 112.63 of the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) and Rule 111 of the Military Rules of Evidence ( MRE ). [ 8 ] In R. v. Souka , 2012 CMAC 2 , the Court Martial Appeal Court has indicated that authorizing a view is a matter within the discretion of the military judge. I agree with the conclusion of the military judge in R. v. Corporal Wilcox , 2009 CM 2024 , to the effect that the jurisprudence that developed under

section 652 of the Criminal Code of Canada , as well as under the common law, is helpful to assist in determining how this discretion is to be exercised. This approach is consistent with MRE 4 and QR&O 101.04.

[9] In that context, the starting point for the analysis can be found in the very words of

section 652 of the Criminal Code whichprovide that: The judge may, where it appears to be in the interests of justice . . . direct the jury to have a view of any place, thing or person . . . In R. v. Bernardo, (ON CA), 1997 CarswellOnt 4956 (Ont. C.A.), the phrase "the interests of justice" has beeninterpreted to signal the existence of a judicial discretion to be exercised on a case-by-case basis in consideration of broad based societalconcerns and the more specific interests of a particular accused. [10] A number of factors have been identified in the case law as being relevant to the determination as to whether a judge shouldexercise discretion to direct a view. They include: (

a) Whether there is other evidence available to advance the case that would offer a suitable alternative to conducting a view(see R. v. Paradis, 1976 CarswellQue 82 (Que. C.A.), par. 10); (

b) Whether there is value to be gained in the appreciation of the evidence by holding a view (see R. v. Wilcox, 2009 CM 2024at par. 21); (

c) Fairness to all parties. In other words, that any prejudice does not outweigh the probative value or the advantage to be gainedby the trier of fact from the holding of a view (see Meyers v. Manitoba, 1960 CarswellMan 43 (Man. C.A.) at par. 22); and (

d) Practical inconvenience, expense, safety concerns and disruption (see R. v. Vallis, 1989 CarswellBC 288 (B.C.C.

A) at pp. 6-7). C.

Findings [11] I find these factors, as applied to the facts in this case, justify directing the conduct of a view and a demonstration at the view.There is no evidence that could be introduced that would offer a suitable alternative to the demonstration being proposed, given therequirement for the proper appreciation of distances of 50 metres and more, which cannot be replicated in the courtroom or by video.The value to be gained is, in my view, significant, if only to ensure that in providing the same baseline experience for all members of thecourt in the basic operation and capabilities of NVGs.

One could argue that the panel of a General Court Martial possesses a militaryexperience that makes its members more likely to have experience in the use of NVGs than a civilian jury would. Yet, therein lies a riskthat panel members use the experience they have gained with NVGs of a different kind in appreciating the evidence of witnesses whotestify as to what they saw through F5050 NVGs.

Furthermore, there is also a risk that a panel member who has extensive experiencewith NVGs in the course of his or her military career influences unduly other members of the panel who have little or no experience inthe use of NVGs. That risks prejudicing both parties equally. [12] The inconvenience and expense involved in holding the view and the demonstration at the view on CFB Petawawa are minimal.The layout proposed is simple and can be set up quite easily with minimal effort, as I have witnessed during my visit of the proposed sitein the course of the voir dire.

Counsel for both prosecution and defence have expressed no specific concern as to any prejudicial value inholding the demonstration, as long as this is done in a tightly controlled manner and accompanied by a clear statement of purpose for thebenefit of the panel members. [13] I am confident that the direction I will provide below as to how the demonstration at the view is to be conducted, especiallyAnnexes A and B, will be sufficient to alleviate any concerns as to the level of control which will be exercised by myself as militaryjudge during the demonstration.

As for the purpose of the view, I am fully aware of the existence of competing jurisprudence in civiliancourts as to whether a view is evidence or simply providing background context or clarification. Yet, in my opinion, at courts martial,this issue is governed by MRE 111 which provides that “real evidence may be introduced [through] a visit of the court to view a place,thing or person, under QR&O 112.63”. I note that this is consistent with the position taken by the author G.S. Lester in “Tendering aView and a Demonstration on a View” (1997), 19 Adv.

Q. 345 which offers, through an extensive review of applicable authorities, acompelling case that a view itself is evidence. I fully endorse the conclusions stated in this article. I note that it is the conclusion that has

also been reached in McWilliams’ Canadian Criminal Evidence, S. Casey Hill, David M. Tanovich, Louis P. Strezos,

Part IV — The Instruments of Evidence,

Chapter 23 — Real and Demonstrative Evidence, 23:30 — Demonstrative Evidence. [ 14 ] In any event, in circumstances where a view also includes a demonstration or experimentation, as will be the case here, then there is little doubt that it is actual evidence. There is no reason to treat a demonstration or experimentation conducted at a view differently from one that would take place in the courtroom.

It is important to remember that what is to be observed at a view will be subject to my instructions as military judge as it pertains to the use that can be made of that evidence and to instructions pertaining to the weight to be given to various items of evidence that the members of the panel, as triers of fact, will have to consider. D. Conclusion [ 15 ] The application of the prosecution for an order authorizing a view and a demonstration at the view, in accordance with

section 190 of the NDA , is granted. [ 16 ] The court will move to a suitable location outdoors and participate in a demonstration during which a number of things will be seen through NVGs within the parameters stated in the direction enclosed herein. Counsel: The Director of Military Prosecutions as represented by Major C. Walsh and Major D.G.J. Martin Major D.

Hodson, Defence Counsel Services, Counsel for Corporal Cadieux DIRECTION AS TO THE CONDUCT OF THE DEMONSTRATION AT THE VIEW [1] The witness called by the prosecution in the afternoon of 8 June 2016 to explain the capabilities and operation of F5050 NVGs to members of the panel and other participants in the courtroom will remain sworn in and will be present at the view to assist members of the panel in fitting and adjusting their individual NVGs and associated equipment. [2] The execution of the demonstration on the view is to commence at approximately 2200 hours on Wednesday, 8 June 2016.

The following participants will be in attendance: the presiding military judge, all five members of the panel, the accused and his counsel, the two prosecutors, the two court reporters and any amount of court staff required, at the direction and discretion of the officer of the court, to allow the demonstration at the view to occur smoothly. The proceedings remain open to the public. [3] T he participants will first gather in the courtroom for final fitting and instructions from the military judge.

The members of the display team will be present in the courtroom in the dress and wearing the equipment required for the demonstration at the view. This will allow the court and counsel to gain an awareness of that aspect of the demonstration and provide an opportunity to comment. [4] The participants will then proceed to the location where the demonstration at the view is to take place. The officer of the court will make all the transportation and logistical arrangements necessary for transport by vehicle, including any members of the public.

The members of the panel will travel in one vehicle, separate from that of the military judge or counsel. The military judge will travel in a vehicle separate from counsel. The members of the panel will, at all times, be kept separate and apart from the accused, counsel and the witness.

[5] The officer of the court will ensure, in advance of the view, that the grounds where the view will be held is marked in accordance with the diagram at Annex A. [6] At the location of the view, the members of the panel will, at all times, be kept together.

During the entire demonstration at the view, the members of the panel, the prosecutors, counsel for the defence with the accused and any witness will remain at their marked position, as identified on the ground, in accordance with the diagram at Annex A, except as may be authorized by the military judge. [7] The proceedings will be audio recorded by the court reporter.

Video-recording was considered, but dismissed as a method of capturing the event given the conditions of darkness essential to the demonstration. [8] The exact actions to be performed by the members of the display team having been agreed to by counsel and discussed with the military judge in open court, there is no need for “showers” to be appointed.

The officer of the court will identify and assign three members of the court staff to act as members of the display team and perform actions as described at each and every step found at Annex B, which will be read, verbatim, to the extent possible in the circumstances. The officer of the court will provide direction to members of the court staff via a radio communication system.

Once every individual action, at each step, has been performed, the military judge will advise the court reporters of what has been seen for purpose of record completion, then move to the next step. [9] Other than the script being read by the military judge and the dialogue between the members of the court staff for the purpose of the view, participants will refrain from speaking unless a member of the panel or another participant has a concern in the course of one of the steps in the demonstration. If that is to be the case, any discussion will occur through the military judge.

The same witness called by the prosecution in the afternoon will be present for the view, available to assist with resolving any technical difficulties. [10] Once every step from Annex B has been performed, the panel will be provided with an opportunity to voice any question and/or request they might have at the site of the view. If a question or comment is voiced, counsel will be consulted while the panel may be asked to retire to their vehicle.

If there are no concerns from the panel or after all concerns have been addressed, counsel will, in turn, be asked to voice any concern they may have. [11] In the absence of questions, the participants will return to the courtroom and counsel will be consulted as to the requirement for any instructions or questions to the witness on anything which occurred during the demonstration at the view or generally concerning his testimony. ANNEX A

ANNEX B Serial SCRIPT INTRODUCTORY COMMENTS Members of the Panel, please position yourself in the area identified for your position. You will note the position of others as follow. I will invite you to turn and look to your right towards me. On your left is what was referred to in the courtroom as the “personnel’s side”. On your right is what is referred to as the “target side”. I will be remaining here to your right, with the officer of the court and the court reporter. Next to me on my right when facing the personal side is the witness that is still under direct-examination.

To your left when facing the personal side is the prosecution and the defence. Members of the court staff are at various locations around you, ready to support. Please put on your respective NVG and turn them on.

Please confirm you have a clear picture. If you do not, please let me know. The witness will come and assist you.

This view will involve six steps as follow: Step 1: Observation of real members wearing IR glow sticks at 50 metres; Step 2: Observation of real members wearing IR glow sticks at 100 metres; Step 3: Observation of real members at 100 metres with the addition of one member wearing a red glow stick on his helmet; Step 4: Observation of real members at 50 metres with the addition of one member wearing a red glow stick on his helmet; Step 5: Observation of a target at 50 metres; Step 6: Observation of a target at 100 metres.

At 50 metre down on the personal side are two members wearing combat apparel, dressed the same way as they were earlier in the courtroom. At this time, they have no infrared markings of any sort on them or near them. I will from now on refer to them as the “display team”. As part of step 1, under my direction, the display team will adopt successively the standing position, the knelling position and then the prone position. At each position, I will ask them to slowly perform a 360 degrees rotation on themselves. The officer of the court will be communicating to them using a radio-communication system.

Before each action, I will announce what the members will do next. After each action, I will describe for the benefit of the court reporter the action that I have seen performed and then announce the next action. As I mentioned, the members are currently at 50 metres. That is the distance that is between the tape line right in front of you and where the display team members are currently standing. Once all actions under the various positions at 50 metres are completed, the display team will, under my direction move to the 100 metres line where they will re-perform the same actions, once again, at that distance.

The actions at 100 metres will constitute step 2. For step 3, I will call upon a third member wearing a regular red glow stick to walk up to the 100 metre line. Once he is there, this member will, under my direction, perform a 360 degrees rotation, with the two other members of the display team wearing IR glow sticks standing still. For step 4, I will ask the display team, now composed of three members to walk to the 50 metre line where the member wearing the red glow stick will perform a 360 degrees rotation at 50 metres.

Again, the two members wearing IR glow stick will stand facing in your direction as this occurs. At any point, during the demonstration, if you are not able to see the action being performed, please let me know. Please turn to you left and face the personal side. I will now ask that both members of the display team crack two infrared glow sticks each. I will ask the one on the left to place one glow stick on each arm inside the pockets on the upper arm. I will ask the other to place one glow stick on each arm but Serial SCRIPT

in the elastics that are on the outside of the pockets. We will wait approximately 30 seconds to ensure that the glow sticks are fully illuminated. Take your time to adjust your NVG and advise if you require any assistance. Please let me know by a thumbs-up once your adjustments are completed.

STEP 1 – OBSERVATION OF REAL MEMBERS WEARING IR GLOW STICKS AT 50 METRES Serial SCRIPT 1 The display team will perform a 360 degrees rotation at the standing position. 2 The display team will perform a 360 degrees rotation at the kneeling position. 3 The display team will perform a 360 degrees rotation at the prone position.

STEP 2 – OBSERVATION OF REAL MEMBERS WEARING IR GLOW STICKS AT 100 METRES 4 The display team will stand up and walk to the 100 metre line. 5 The display team will perform a 360 degrees rotation at the standing position. 6 The display team will perform a 360 degrees rotation at the kneeling position. 7 The display team will perform a 360 degrees rotation at the prone position. STEP 3 - OBSERVATION OF REAL MEMBERS AT 100 METRES WITH THE ADDITION OF ONE MEMBER WEARING A RED GLOW STICK ON HIS HELMET 8 Members of the Panel, I will now ask a third member to join the other two at the 100 metre line.

This member is wearing a red glow stick that is already activated and affixed to the back of his helmet. 9 The member wearing the red glow stick will perform a 360 degrees rotation at the standing position. The other two members will stand up and will remain facing in your direction. TRANSITION TO STEP 4 10 All three members will now walk to the 50 metre line. STEP 4 -OBSERVATION OF REAL MEMBERS AT 50 METRES WITH THE ADDITION OF ONE MEMBER WEARING A RED GLOW STICK ON HIS HELMET 11 The member wearing the red glow stick will perform a 360 degrees rotation at the standing position.

The other two members will stand up and will remain facing in your direction. TRANSITION TO STEP 5 12 The two members wearing IR glow sticks will now position themselves to the left of the prosecution and defence’s position. STEP 5 - OBSERVATION OF A TARGET AT 50 METRES 13 Members of the Panel, please turn around to face the direction currently behind you. That is what we refer to as the “target side”. 14 In the distance, you should be able to see one target at 50 metres. Please let me know if you cannot see that target, as required it will be illuminated with a laser.

There is another one behind it at 100 metres, but at this time, it is on the ground and you should not be able to see it. 15 One member of the display team will aim at the target and illuminate it with his laser designator. 16 The second member of the display team will aim at the target and illuminate it with his laser designator for 20 seconds approximately. You will at this time see the target being illuminated by two lasers.

STEP 6 - OBSERVATION OF A TARGET AT 100 METRES 17 The target at 50 metres will now be dropped on the ground and the target at 100 metres will be raised by a member of the staff. 18 In the distance, you should be able to see one target at 100 metres. Please let me know if you cannot see that target, as required it will be illuminated with a laser. 19 One member of the display team will aim at the target and illuminate it with his laser designator. 20 The second member of the display team will aim at the target and illuminate it with his laser designator for 20 seconds approximately.

You will at this time see the target being illuminated by two lasers. CONCLUSION This concludes the demonstration. At this point, I ask whether any member of the panel has any questions or concerns regarding the demonstration or whether there are any concerns which would require additional actions being performed at this location. You can converse between yourselves for this limited purpose. If you do have a question or a request, please voice it. As required, I will provide direction as to the way ahead, most likely after further discussion with counsels.

If there are no concerns from the panel or after any concern has been addressed, counsels will in turn be asked to voice any concern they might have. Serial SCRIPT