R v Cyr, 2012 CM 3014

COURT MARTIAL Citation: R v Cyr , 2012 CM 3014 Date: 20120920 Docket: 201213 Standing Court Martial Canadian Forces Base Kingston Kingston, Ontario, Canada Between: Her Majesty the Queen - and - Sergeant J.S.F. Cyr, Accused Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR FINDING (Rendered orally) [ 1 ] Sergeant Cyr is charged with stealing contrary to

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

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

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

section 130 of the National Defence Act for possessing a prohibited device contrary to subsection 92(2) of the Criminal Code . [ 2 ] The trial started on 10 September 2012, at which time Sergeant Cyr brought an application for exclusion of evidence under subsection 24(2) of the Charter on the basis of alleged infringements of his rights under sections 8 and 9 and paragraph 10(

b) of the Charter. He also requested a voir dire regarding the voluntariness of his alleged false statements, namely, a written statement, and his written and oral statements of 1 and 3 November 2010. [ 3 ] I heard all of the legal issues over the course of three separate voir dires held between 10 and 15 September 2012. Yesterday, on 19 September, I rendered my decisions, in which I held that the two written and oral statements of 1 and 3 November 2010 were made voluntarily, and I also decided that there was no need for such a determination regarding the statement of 12 October 2010, and, finally, I

rejected Sergeant Cyr’s application with respect to an alleged infringement of the Charter provisions and his request for an exclusion. [ 4 ] This morning, the trial resumed, and the prosecution introduced various items of evidence with the consent of the defence, in other words, with the consent of Sergeant Cyr. Therefore, the principal evidence in this case is composed of the testimony of Mr. Durepos, Master Corporal Duquette, Mr. Meunier, Sergeant Meunier and Master Corporal Goulet, testimony heard over the course of the various voir dires and submitted by the prosecution with Sergeant Cyr’s consent.

Also entered with consent, still with the consent of Sergeant Cyr, were the binder of photographs; Sergeant Cyr’s memorandum dated 12 October 2010; the two DVDs, the two written transcripts and the two written statements from the interviews of 1 and 3 November 2010; a five-page document from the firm Instant Comptant; a DND 638 Temporary Issue form signed by Sergeant Cyr, dated 21 July 2010; Sergeant Cyr’s Member Personnel Record Resume for both his Reserve Force and Regular Force careers; and, finally, his admissions, six admissions made by Sergeant Cyr under paragraph 37(

b) of the Military Rules of Evidence . Following the filing of this evidence, which was done, if I understand correctly, in the event of an appeal of this case, I asked the defence whether it had any defence to present, and the answer was no. [ 5 ] The facts of this case may be summarized as follows: from the summer of 2010 to the end of September 2010, Sergeant Cyr was the commander of the Quartermaster

Section for the signals platoon of the 5 Canadian Service Battalion in Valcartier. It appears that in early October, his superior, Captain Durepos, was informed by Quartermaster staff that there was some sort of misunderstanding with respect to the return of a DeWalt tool kit that Sergeant Cyr had borrowed.

Captain Durepos was able to confirm that the tools in question had indeed been issued to Sergeant Cyr on 21 July 2010, and that the tools had supposedly been returned to a certain Corporal Lachance, but that they could not be located within the unit. [ 6 ] Captain Durepos explained in his testimony that a trustworthy person could make a mistake, and that his first priority was to deal with the loss of the tools, so he asked Sergeant Cyr, whom he telephoned in his new unit in Kingston, to explain his version of the facts and to provide that version in writing; he did so in the memorandum dated 12 October 2010, which Captain Durepos received by e- mail—following an e-mail sent to him by Sergeant Cyr.

Having checked the DND 638 Temporary Issue form, which had been found in the unit, Captain Durepos became suspicious about the claim that Sergeant Cyr had returned the equipment.

At that point, instead of launching what he called an administrative investigation to take the necessary measures to have the equipment written off and to determine whether the loss should be reimbursed by Sergeant Cyr, Captain Durepos decided to refer the entire matter to the Military Police for a disciplinary investigation. [ 7 ] This is how Master Corporal Duquette, Sergeant Meunier and Master Corporal Goulet became involved in the investigation as Military Police at the Valcartier base or garrison, and they proceeded from there.

An application was made by Master Corporal Goulet; he laid an information to obtain a general search warrant, which was executed on 29 October 2010 on the basis of the facts essentially as reported by Captain Durepos and his staff. After a covert entry into Sergeant Cyr’s residence, the DeWalt tool kit could not be found, but the police realized that the residence contained a large quantity of what looked like equipment belonging to the Canadian Forces that should not have been there.

Therefore, Master Corporal Duquette applied for a telewarrant, which was issued on 30 October, and seized various items on 30 October in Sergeant’s Cyr’s residence. [ 8 ] Sergeant Cyr was arrested on 1 November and brought in for interrogation. He made a series of admissions and was placed in detention. The police conducted checks regarding some of his statements, and on 3 November, he was interrogated again. At the end of this interview, he was released. He then returned to his home with the police and pointed out various items in his possession that he believed were the property of the Canadian Forces.

Following this investigation, charges were laid, charges that are now before this Court Martial. [ 9 ] Essentially, the prosecution’s position is that on the basis of the evidence submitted to the Court, Sergeant Cyr—the prosecution has established beyond a reasonable doubt all of the essential elements of the four charges appearing on the charge sheet. [ 10 ] As for the defence’s position, keeping in mind the possibility that the decisions rendered by the Court will be appealed, it is of the view that the Court could probably reach a guilty verdict on all four charges.

The only point that it raises is that for the second charge, with respect to the location, it might be appropriate for the Court to make a special finding, given that the evidence may establish that the false statement made in the official document was made at the Canadian Forces Base Kingston or in the vicinity, at or near the Canadian Forces Base Kingston rather than near the Valcartier Garrison. [ 11 ] So, by law, considering the first charge, the prosecution had to prove beyond a reasonable doubt the following elements: the identity of the person who committed the offence; the location and date of the offence as alleged in the particulars of the offence; that Sergeant Cyr had no rights to the objects listed in the annex, which was amended before the guilty plea was entered as it now appears on the charge sheet; that the taking of the property was done fraudulently and without colour of right and that Sergeant Cyr temporarily or permanently took the items listed in the annex; and, finally, the prosecution had to establish beyond a reasonable doubt the ownership of the property listed in the annex.

[ 12 ] Having reviewed the evidence, it appears in particular from Exhibit 14, admissions made by Sergeant Cyr, photographs one, two and three in the binder of photographs corresponding to the annex attached to the charge sheet, the interviews of 1 and 3 November 2010, and there I am looking at Exhibits 5 to 10 relating to this trial, that the prosecution has proven beyond a reasonable doubt all of the essential elements of the charge of stealing. Therefore, I am satisfied that the prosecution has met its burden in this respect. [ 13 ] Now, as for the second charge, the prosecution, and here we are talking about the charge brought under

section or paragraph 125(

a) of the National Defence Act , to the effect that Sergeant Cyr wilfully made a false statement in a document made by him that was required for official purposes, namely, the memorandum that he prepared on 12 October 2010. The prosecution had to prove beyond a reasonable doubt the identity; the date and location of the offence; the fact that Sergeant Cyr made a statement in a document; the fact that the statement was false; the fact that Sergeant Cyr acted wilfully; and the fact that the document in question was required for official purposes. [ 14 ] With respect to the issue of identity, it is clear from Mr.

Durepos’s testimony that the author of the memorandum of 12 October 2010 is indeed Sergeant Cyr, beyond a reasonable doubt. With respect to the date, I believe it has been confirmed—I do not believe—it has been confirmed by Mr. Durepos, who identified the document that was also filed as evidence, and the date of 12 October seems to be established beyond a reasonable doubt in that respect.

As for the location, it appears from the essential element of this charge, having considered the submissions of Major Thomas, who represents Sergeant Cyr, that in my view the prosecution had to establish that the document had been made, therefore where it had been made, therefore where it had been created, in other words, that it had been fabricated. I indeed conclude that there is no evidence that the document in question was made or created at the Valcartier Garrison, but rather in or near the Canadian Forces Base Kingston. In this respect, as is permitted in such a situation, I had a look at

section 138 of the National Defence Act as well as

article 142 of the QR&O.

Section 138 reads as follows: Where a service tribunal concludes that (

a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and (

b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence, the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars. It has indeed been proven beyond a reasonable doubt, and the Court can draw an inference beyond a reasonable doubt to this effect from the testimony of Mr.

Durepos and the statements made by Sergeant Cyr regarding his memorandum that it was made at the Canadian Forces Base Kingston, that accordingly this fact is established even though it differs materially from the alleged fact, namely, that it was made at Valcartier; it is sufficient to establish beyond a reasonable doubt the essential element relating to the location, and this difference, in my view, does not prejudice the accused person in his defence, given that it was a fact of which he was aware before the trial and probably at the time of disclosure; in any case, there has been no demonstration to this effect.

Therefore, I have no problem with considering a special verdict, but before considering that, obviously I must look at the other essential elements. [ 15 ] The accused made the statement in the document; he is indeed the author of the statement that he made, and to that effect, the memorandum, Exhibit 4, the memorandum of 12 October establishes this essential element beyond a reasonable doubt.

The statement was false, obviously, and there is Admission 4 at Exhibit 14 on which to base a finding of proof beyond a reasonable doubt, but also the statements that were made, in particular, the admissions that were made by the accused in his statement of 1 November 2010: here I am referring to Exhibits 5, 6 and 10, which are all connected with that statement. Therefore, in my view, it has been proven beyond a reasonable doubt that the statement was false. The fact that Sergeant Cyr acted wilfully is another essential element that had to be proven.

Again, Mr Durepos’s testimony, combined with Sergeant Cyr’s statement of 1 November 2010, is sufficient to establish this essential element beyond a reasonable doubt. Finally, with respect to the fact that the document was required for official purposes, I rely on Mr.

Durepos’s testimony in finding that this essential element is also proven beyond a reasonable doubt. [ 16 ] Therefore, I conclude that the prosecution has proven beyond a reasonable doubt all of the essential elements of the charge except for location, but in that respect, I find that even if it differs materially from the facts alleged in the details or in the statement of particulars, the location of the commission of this offence has been proven beyond a reasonable doubt, and finally, I conclude that the

prosecution has met its burden of proof with respect to this offence. [ 17 ] Now, the third charge, improperly selling public property contrary to paragraph 116(

a) of the National Defence Act , let’s say that Admission 5, at Exhibit 14, goes to the heart of most of the essential elements of this charge. To simplify, the identity, date and location have been admitted by Sergeant Cyr, the fact that the property was public property belonging to Her Majesty, there is Mr.

Durepos’s testimony regarding the nature of the property, Admission 5 at Exhibit 14, obviously Exhibit 12, the DND 638 Temporary Issue form; the accused sold the property, and here the Court is relying on Admission 5 at Exhibit 14; the fact that the property was sold improperly, obviously the DND 638 Temporary Issue form demonstrating that Sergeant Cyr was in possession of the property, Mr.

Durepos’s testimony and Sergeant Cyr’s statements of 1 and 3 November 2010 establish this beyond a reasonable doubt; and, finally, the fact that the accused, namely, Sergeant Cyr, knew what he was doing, that is, he acted wilfully, and Admission 5 at Exhibit 14 and his statements contained therein—the statements of 1 and 3 November 2010, grouped together at Exhibits 5 to 10—are sufficient to establish this essential element beyond a reasonable doubt. Accordingly, I find that the prosecution has met its burden of proof for this offence. [ 18 ] Now, with respect to the fourth charge, an offence punishable under

section 130 of the National Defence Act , namely, possessing a prohibited device contrary to subsection 92(2) of the Criminal Code . Admission 6, at Exhibit 14, addresses all of the essential elements of this charge.

Therefore, the identity of the accused is established by Admission 6, Exhibit 14; the date and location are established beyond a reasonable doubt by Admissions 6 and 2, Exhibit 14; the fact that the accused was in possession of a prohibited device is established beyond a reasonable doubt by Admission 6, Exhibit 14; and finally—no, not finally, but there is also the fact that the accused did not hold a licence authorizing his possession of the prohibited device, again Admission 6, Exhibit 14; and finally, for the fact that he did not hold such a licence or the fact that Sergeant Cyr knew that he did not hold such a licence, I am relying once again on Admission 6, Exhibit 14.

Here, too, I find that the prosecution has met its burden of proof with respect to this charge. [ 19 ] Sergeant Cyr, stand up. FOR THESE REASONS, THE COURT: [ 20 ] FINDS you guilty of the first, second, third and fourth charges. Counsel: Major E. Carrier, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major E. Thomas, Defence Counsel Services Counsel for Sergeant J.S.F. Cyr