R v Lalande, 2011 CM 2005

COURT MARTIAL Citation: R v Lalande, 2011 CM 2005 Date: 20110401 Docket: 201056 Standing Court Martial 14 Wing Greenwood Greenwood, Nova Scotia, Canada Between: Her Majesty the Queen - and - Sergeant J.M. Lalande, Accused Before: Commander P.J. Lamont, M.J. REASONS FOR FINDING [ 1 ] Sergeant Lalande, would you stand please. This court finds you guilty of the first charge and orders a stay of proceedings with respect to the second charge.

You may be seated. [ 2 ] Sergeant John Michael Lalande is charged with two offences under the National Defence Act , in the first charge, a charge that he ill-treated a person who by reason of rank was subordinate to him, and in the second charge, laid in the alternative, an offence of assault contrary to

section 266 of the Criminal Code which is a service offence under

section 130 of the National Defence Act. [ 3 ] At his trial by Standing Court Martial, and prior to plea, Sergeant Lalande, whom I will occasionally refer to as the applicant, applied by a written notice of application, Exhibit PP1-2, seeking a stay of proceedings, or other just relief.

The notice of application itself was not entirely clear as to the basis upon which it was sought to obtain the remedy of a stay, but in written submissions filed by both parties after the hearing of evidence on the application, (Exhibit M2-16 written submissions of the applicant, Exhibit M2-17 respondent's submissions, and Exhibit M2-18 written reply of the applicant), it became clear that the grounds urged by the applicant for the granting of a stay are abuse of process, including the residual category of abusive conduct that is a violation of the Charter guaranteed rights in

section 7, and pre-charge delay amounting to an infringement of the right to a fair trial guaranteed by Charter

section 11(d).

[ 4 ] Following oral argument on the application I dismissed the application and undertook to give reasons for my decision. These are those reasons. [ 5 ] The viva voce evidence of some 13 witnesses was heard on the application and a number of documents were filed as exhibits. I accept the evidence of the witnesses, including the evidence of Sergeant Lalande. I find that such inconsistencies as may be found among the witnesses are on relatively minor points only. On the basis of that body of evidence I am able to make the following findings of fact. [ 6 ] In 2002 the applicant, a long-serving member of the Canadian Forces, was found guilty at

summary trial of offences of assault causing bodily arm and

an act to the prejudice of good order and discipline, that is to say quarrelling in the presence of subordinates, for which he was sentenced to 20 days detention suspended and reduced in rank. Some years earlier, in 1991, he was convicted in civil court in Alberta for stealing a bond of a value not exceeding $1000.00 and sentenced to one day imprisonment and a fine of $500.00. [ 7 ] In 2007 Sergeant Lalande applied for and was granted a pardon under the Criminal Records Act for these offences. He received documentation from Canadian Pardon Services on Government of Canada letterhead dated 28 January 2008.

He brought pardon documentation to the attention of his unit in a meeting he had with a Captain Hiscock shortly after receiving the pardon. [ 8 ] DAOD 7016-0, entitled "Pardons" states as a matter of policy that when a pardon is granted to a member under the Criminal Records Act , the service records of that member shall be amended. It is the responsibility of the commanding officer to amend the unit service records, and of the Chief of Military Personnel and the Vice Chief of the Defence Staff to amend centrally held service records of the member.

DAOD 7016-1 entitled "Canadian Forces Administration in Respect of a Pardon" requires the commanding officer who is provided with a copy of a pardon to prepare a conduct sheet with the pardoned entry removed, and remove documents relating to the pardoned offence from any unit files.

In the case of Sergeant Lalande the required administration of the pardon was not effected until 16 August 2010, over two and a half years from the time the pardon was first brought to the attention of the unit, as a result of an intervention by the assisting officer appointed for Sergeant Lalande, Major Colwell. [ 9 ] In the meantime, in June of 2009 Sergeant Lalande was the subject of a complaint that resulted in a charge, in a Record of Disciplinary Proceedings, of striking a person who by virtue of rank was subordinate to him. The charge has become the first of the two charges before this court.

The senior non-commissioned member of the unit who initiated the investigation, the military police who took over the investigation, the charging authority within the unit, the unit commanding officer, and the chain of command including the referral authority, and the prosecutor who approved charges for court martial, all had access to, or were informed by persons who had access to, the information concerning the convictions for which the applicant had been pardoned.

If the administration of the personnel file of the applicant had been effected in a timely manner, I find that most of the decision-makers in the investigation and charge approval process, and all of the senior decision-makers, from the commanding officer of the unit and above him, would not have been aware of the convictions for which pardon was granted. [ 10 ] I also find that the events giving rise to the charges for which Sergeant Lalande was convicted in 2002 were a matter of common knowledge, or rumour at least, within a relatively small community, which included senior non-commissioned members of Sergeant Lalande's unit and some of the individuals who were interviewed by the military police in the course of their investigation.

More senior decision makers would not have been aware of the incident that gave rise to these pardoned offences except by reference to the conduct sheet that records the convictions. [ 11 ] I also find as a fact that some senior non-commissioned members in the unit were aware, or should have been aware, that the 2002 offences were pardoned but nonetheless passed on information to the military police concerning the convictions and about the incident underlying the convictions. [ 12 ] On these facts the applicant argues that there has been an abuse of process because all the decision-makers from the investigators to and including the charge-approval prosecutor, have been tainted in their decision-making by knowledge of the offences committed by Sergeant Lalande for which he has been pardoned, (Exhibit M2-16 written submission of the applicant para 50 "every action taken by the state against Sergeant Lalande has been tainted by the disclosure of convictions for which he had been granted a pardon").

It is argued that the disclosure and use of the pardoned convictions is a violation of the Criminal Records Act and the policy of the Canadian Forces contained in the DAOD, and amounts to discrimination contrary to the Canadian Human Rights Act. [ 13 ] The pardon was granted under

section 5 of the Criminal Records Act which read, at the time the pardon was granted in late January of 2008:

5. The pardon (

a) is evidence of the fact (

i) that, in the case of a pardon for an offence referred to in paragraph 4( a ), the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and (ii) that, in the case of any pardon, the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character; and (

b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than

section 109 , 110 , 161 , 259 , 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) of the National Defence Act , or of a regulation made under

an Act of Parliament. [ 14 ] In my view, the argument of the applicant proceeds on the basis of a misconception about the effect of a pardon granted under the Criminal Records Act . This kind of pardon, called an "administrative pardon" is intended to minimize or to avoid entirely some of the legal consequences that flow from a criminal conviction.

The pardon does not have the effect of wiping out the conviction so that the conviction no longer exists nor does such a pardon purport to re-write history by suggesting that the conduct that gave rise to the charge and conviction did not occur. [ 15 ] In Re Therrien 2001 SCC 35 the Supreme Court of Canada speaking through Gonthier J spoke of the legal effect of an administrative pardon: 116

Section 5 and 6(2) C.R.A., set out the effect of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it vacates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being kept separate and apart: in other words, the criminal record is expunged.

In and of themselves, these provision do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences.

Section 5( a )(ii) C.R.A., provides that the pardon is evidence that "the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character" (emphasis added), implying that it still exists and could so reflect. Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect.

Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct. And quoted with approval the opinion of Professor Dumont as to the effect of a pardon granted under the Criminal Records Act , at para 122: [TRANSLATION] It seems clear that the Criminal Records Act grants a pardon which is designed only to put an end to the negative effects of a conviction.

An administrative pardon, which adopts the features of a partial and conditional pardon, is not equivalent to a retroactive acquittal, as a free pardon may be, by virtue of the Royal prerogative or the Criminal Code ; accordingly, an administrative pardon does not logically result in retroactive annulment or neutralization of the conviction. [Emphasis in original.] [ 16 ] The applicant argues though that the knowledge of the pardoned convictions by the various decision-makers has reflected adversely on the character of Sergeant Lalande. I do not accept this submission.

In the first place for those decision-makers who were aware of or had heard about the incidents giving rise to the pardoned convictions, they were entitled to consider their knowledge of the character of the applicant when making the various administrative and disciplinary decisions they made, whether or not the behaviour was the subject of a charge, much less a conviction or a pardon.

Secondly, I find that the decision-makers whose only knowledge of the previous incident derived from a perusal of the conduct sheet, where much more influenced in their decision-making by the facts of the current offence alleged against Sergeant Lalande. In particular, I accept the evidence of Lieutenant-Colonel Flynn, who as the commanding officer was responsible for the discipline of his unit, that the previous offences, which he now knows were pardoned prior

to the offence date for the current alleged offences, were not a significant factor in his decision to authorize charges and refer the matter for court martial. [ 17 ] I do not accept the submission of the applicant that upon becoming aware that the previous offences were pardoned that the charge-laying and charge-approving authorities were required to re-assess the case for prosecution based upon their improved state of knowledge.

I did not understand any of the decision-making witnesses who gave evidence to say that they would have decided otherwise than the way they did if they had been aware of the pardon granted for the previous convictions, or if they had been unaware of the incident that gave rise to the pardoned offences. [ 18 ] Nor do I accept the submission that the applicant has been the subject of discrimination contrary to the Canadian Human Rights Act . It is true that "conviction for which a pardon has been granted" is a prohibited ground of discrimination, but I find no evidence of a discriminatory practice in this case.

In particular, the applicant was not targeted for investigation or prosecution because he had been convicted in the past or because he was pardoned. He was investigated because of the complaint made by the complainant, Master Corporal Kresky (Exhibit M2-9), that suggested the commission of one or more disciplinary offences. [ 19 ] An abuse of process of constitutional significance occurs where a prosecution is conducted "in a manner that contravenes the community's basic sense of decency and fair play and thereby calls into question the integrity of the system".

Ordinarily such conduct affects the fairness of a trial or impairs other procedural rights enumerated in the Canadian Charter of Rights and Freedoms . But even if it does not, there is a residual category of conduct caught by

section 7 where a prosecution is conducted in such a manner as to connote unfairness or vexatiousness to such a degree that it contravenes fundamental notions of justice and thereby undermines the integrity of the judicial process. In either circumstance the principles of fundamental justice are violated contrary to

section 7 of the Charter , and a remedy should be granted. [ 20 ] In the circumstances of the present case I conclude that the unit and some of the members thereof failed to process the pardon in a timely manner, and one or more members may have committed a

summary conviction offence contrary to the Criminal Records Act by disclosing the record of conviction in respect of which a pardon had been granted contrary to sub-section 6(2) of the Criminal Records Act . As a result all the decision-makers in the investigation, the charge-laying and charge-approval stages had information with respect to previous convictions of Sergeant Lalande which they should not have had.

But I cannot conclude that any of the decisions that were made, including charge approval by the prosecutor, would have been any different if the conduct sheet of the applicant were clear of previous convictions at the time those decisions were made. On all the circumstances, I am not satisfied that an abuse of process as described, occurred in the present case. The community's sense of decency and fair play is not affronted, nor is the integrity of the justice system impaired or undermined.

There is no contravention of fundamental notions of justice. [ 21 ] Even if I were so satisfied, this case is far from the clearest of cases that would justify the granting of the remedy sought of a stay of proceedings. [ 22 ] Finally, the applicant argues that a delay of about five months, during which the police investigation of these alleged offences apparently languished, infringes the Charter guarantee to a fair trial. There is simply so substance to this submission.

The position of the applicant appears to be that the memory of some of the witnesses who testified on the application was impaired to some extent, and the impairment is attributable to the delay in the investigation prior to the laying of charges. I do not consider that the memory of any of the witnesses who testified was significantly impaired.

In any event, nearly all of the facts upon which the application was based can be determined from the documentary evidence filed. [ 23 ] The application was dismissed. [ 24 ] The prosecution at court martial, as in any criminal prosecution in a Canadian court, assumes the burden to prove the guilt of the accused beyond a reasonable doubt. In a legal context this is a term of art with an accepted meaning. If the evidence fails to establish the guilt of the accused beyond a reasonable doubt, the accused must be found not guilty of the offence. That burden of proof rests upon the prosecution and it never shifts.

There is no burden upon the accused to establish his or her innocence. Indeed the accused is presumed to be innocent at all stages of a prosecution unless and until the prosecution establishes, by evidence that the court accepts, the guilt of the accused beyond a reasonable doubt. [ 25 ] Reasonable doubt does not mean absolute certainty, but it is not sufficient if the evidence leads only to a finding of probable guilt.

If the court is only satisfied that the accused is more likely guilty than not guilty, that is insufficient to find guilt beyond a reasonable doubt, and the accused must therefore be found not guilty. Indeed, the standard of proof beyond a reasonable doubt is much closer to absolute certainty than it is to a standard of probable guilt. But reasonable doubt is not a frivolous or imaginary doubt. It is not

something based upon sympathy or prejudice. It is a doubt based upon reason and common sense that arises from the evidence, or the lack of evidence. [ 26 ] The burden of proof beyond a reasonable doubt applies to each of the elements of the offence charged. In other words, if the evidence fails to establish each element of the offence charged beyond a reasonable doubt, the accused is to be found not guilty. [ 27 ] The rule of reasonable doubt applies to the credibility of witnesses in a case, such as this case, where the evidence discloses different versions of the facts that bear upon the issues.

Arriving at conclusions as to the facts of the case is not a process of preferring one version given by one witness over the version given by another. The court may accept all of what a witness says as the truth, or none of what a witness says. Or the court may accept parts of the evidence of a witness as truthful and accurate. If the evidence of the accused as to the issues or the important aspects of the case is accepted, it follows that he is not guilty of the offence. But even if his evidence is not accepted, if the court is left with a reasonable doubt he is to be found not guilty.

Even if the evidence of the accused does not leave the court with a reasonable doubt, the court must still look at all the evidence it does accept as credible and reliable to determine whether the guilt of the accused is established beyond a reasonable doubt. [ 28 ] The events in question in this case took place in the office of Sergeant Lalande, the Tactical Training Centre office, at CFB Cold Lake. A number of people were present in the small office on 12 June 2009. They were engaged in different tasks or awaiting tasking.

Sergeant Lalande and Master Corporal Kresky were engaged in some brief conversation, and within a short period of time both of them were outside the office. The evidence was contradictory as to the manner in which Master Corporal Kresky left the office. [ 29 ] Master Corporal Kresky testified that he was speaking to Sergeant Lalande, who was seated at his desk, about a work-related matter. Sergeant Lalande came around the desk as Master Corporal Kresky turned to leave the room. Master Corporal Kresky felt force applied to his back which caused him to move and he was pushed out of the office.

He identified Sergeant Lalande as the person who pushed him, and he testified that Sergeant Lalande stated "shut your mouth little man, go back to the canteen". [ 30 ] Master Corporal Schaub testified that he was present in the room and heard some discussion between Sergeant Lalande and Master Corporal Kresky. He saw Sergeant Lalande grab Master Corporal Kresky by the shoulder, spin him around and push him out of the room using the palm of his hand and forearm. [ 31 ] I accept and rely upon the evidence of Master Corporal Schaub as to how the pushing of Master Corporal Kresky was effected by Sergeant Lalande.

Master Corporal Schaub had an unobstructed view of the event that unfolded within a few feet of his position. He had worked closely with Sergeant Lalande as his second in command, and does not appear to have been distracted by anything else that was going on in the office at the time. He was observant enough to see that Sergeant Lalande appeared to him to be a little angry.

He was concerned enough about the behaviour of Sergeant Lalande that he had just seen that he instructed Master Corporal Buckingham to follow them out of the office and keep an eye on them, meaning Sergeant Lalande and Master Corporal Kresky. [ 32 ] He testified in a remarkably straightforward manner without a hint of animus toward Sergeant Lalande, or anyone else. His evidence was entirely unshaken in cross-examination. As well, his evidence that he saw physical contact between Sergeant Lalande and Master Corporal Kresky is corroborated by the evidence of Master Corporal Kresky and by Corporal Wolfe.

While Master Corporal Kresky's description of the physical contact did not include grabbing him by the shoulders and spinning him around, as Master Corporal Schaub testified, this inconsistency does not cause me to doubt the accuracy of Master Corporal Schaub's description of what he saw. [ 33 ] I do not accept the evidence of Sergeant Lalande as to how the events unfolded. He was contradicted in a number of areas by evidence of the four other witnesses whose evidence on those contradicted matters I accept.

For example, although he seems to agree that both he and Master Corporal Kresky left the office at about the same time, he testified he was two feet behind Master Corporal Kresky and suggests that any physical contact between the two of them was accidental. But Corporal Wolfe was clear that Sergeant Lalande was behind Master Corporal Kresky and moved him out of the room with a jerking motion using his body right against Master Corporal Kresky.

Sergeant Lalande states he was not upset with Master Corporal Kresky, but it was Sergeant Lalande who raised his own voice sufficient to attract the attention of Master Corporal Buckingham who was busy examining a

schedule for any changes. [ 34 ] I find therefore that Sergeant Lalande applied some force to physically eject Master Corporal Kresky from his office in the manner that Master Corporal Schaub described in his evidence, and that the application of force was intentional with the obvious purpose of getting Master Corporal Kresky out of his office. There is no doubt that Master Corporal Kresky did not consent to this contact, and I find that Sergeant Lalande did not care, or address his mind to, whether Master Corporal Kresky did not consent.

He was therefore at least reckless as to whether or not Master Corporal Kresky consented to being pushed out of the office. I did not understand defence counsel to argue otherwise. The elements of the offence of assault charged in charge number two are therefore established beyond a

reasonable doubt, and Sergeant Lalande is guilty on charge number two. [ 35 ] Charge number one alleges an offence of ill-treatment of a subordinate and particularizes that the ill-treatment is the pushing of Master Corporal Kresky. I have already found that Sergeant Lalande did indeed intentionally push Master Corporal Kresky in the manner described by Master Corporal Schaub, and the circumstances surrounding the push compel the conclusion that this amounts to ill-treatment. It was done in the presence of other CF members for no valid military purpose.

I do not accept the submission, based upon the evidence of Sergeant Lalande, that Master Corporal Kresky was refusing to comply with the Sergeant's request that he leave the office so that he could accompany him to the office of Captain Plickett. The witnesses who were asked to make a judgment observed that they had not seen similar conduct by a superior toward a subordinate during their time in the Canadian Forces.

Although of a relatively minor nature, the proven conduct of Sergeant Lalande in this case amounts to ordinary violence, and amounts to ill-treatment as that term is understood in Queen's Regulations and Orders

article 103.28. [ 36 ] There is no doubt that at the time of the events Master Corporal Kresky was a subordinate of Sergeant Lalande to his knowledge. He is therefore guilty with respect to charge number one. FOR THESE REASONS, THE COURT: [ 37 ] FINDS that as the charges are laid in the alternative, there will be a finding of guilty on charge number one and a stay of proceedings on charge number two. Counsel: Lieutenant-Commander D.T. Reeves, Director of Military Prosecutions Counsel for Her Majesty the Queen Lieutenant-Commander B.G. Walden, Directorate of Defence Counsel Services Counsel for Sergeant J.M. Lalande