R. v. Donohue, 2015 CM 4006

COURT MARTIAL Citation: R. v. Donohue , 2015 CM 4006 Date: 20150311 Docket: 201408 Standing Court Martial 4th Canadian Division Support Base Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Sergeant M.J. Donohue, Applicant Before: Commander J.B.M. Pelletier, M.J. REASONS WITH RESPECT TO A NON-PRIMA FACIE APPLICATION (Orally) Introduction [ 1 ] In this trial, Sergeant Donohue is facing ten charges arising out of six distinct incidents involving two different persons. In relation to four of these incidents, he is facing alternative charges under

section 130 of the National Defence Act for assault, contrary to

section 266 of the Criminal Code and under

section 129 of the National Defence Act for conduct to the prejudice of good order and discipline alleging harassment, contrary to Defence Administrative Order and Directive 5012-0, which I will refer to as DAOD 5012-0 henceforth. In relation to two other incidents, he is facing a single charge under

section 129 of the National Defence Act , again alleging harassment. Essentially, the prosecution alleges that in July 2013, Sergeant Donohue committed assault and/or harassment involving two students from a group of approximately twenty students he was supervising at Canadian Forces Base Petawawa.

[ 2 ] At the close of the prosecution's case, and pursuant to Queen's Regulations and Orders for the Canadian Forces (QR&O) 112.05(13), the accused presented a non-prima facie motion with regard to the six charges on the charge sheet laid under

section 129 of the National Defence Act on the basis that the prosecution had failed to introduce any evidence concerning one essential element of these offences; namely, the actual or deemed knowledge by Sergeant Donohue of the order found at DAOD 5012-0. The Charges Subject to the Application [ 3 ] The statement of the offence and the particulars of those six charges are very similar.

It is alleged that Sergeant Donohue committed the offence of conduct to the prejudice of good order and discipline in that he, between 1 July 2013 and 30 July 2013, at or near Canadian Forces Base Petawawa, Ontario, did harass a named person by committing certain acts contrary to DAOD 5012-0, Harassment Prevention and Resolution. [ 4 ] Essentially, the particulars differ only by the name of the specific complainant and a description of the specific acts, which allegedly constitute harassment.

For instance, the particulars of charge 4 read, in part, as follows: “did harass Stephanie Dorsch by lifting her upside-down, contrary to DAOD 5012-0.” [ 5 ] In addition to the mental element of a blameworthy state of mind on the part of the accused, the essential elements of any offence under

section 129 of the National Defence Act are as follows: a. the identity of the accused as the offender; b. the date and place of the offence; c. the conduct alleged in the charges; and d. the prejudice to good order and discipline, which includes three sub-elements: i. the existence of a standard of conduct; ii. the actual or implied knowledge of the standard of conduct required; and, iii. the acts alleged constitute a breach of the standard of conduct required. [ 6 ] Here, the prosecution is alleging contravention of an order published for the general information and guidance of the Canadian Forces.

If that contravention is proven, the prosecution can then benefit from the presumption at subsection 129(2) of the National Defence Act to the effect that the conduct alleged is conduct to the prejudice of good order and discipline. In such situation, the sub-elements of the offence identified above pertaining to the prejudice to good order and discipline become centred on that order.

Consequently, to benefit from the presumption and prove prejudice to good order and discipline, the prosecution must prove: a. the nature and existence of the order; b. the accused's actual or implied knowledge of the order; and, c. that the accused's conduct amounted to contravention of the order.

Position of the Parties [7] In this trial, the elements of identity of Sergeant Donohue and of the place of the offences were admitted at the outset by thedefence. It's not contested that evidence was received in respect of the period of time when the alleged offences were committed, and onthe conduct alleged in the charges. It is the element of prejudice to good order and discipline that is challenged in this application;specifically, the alleged failure of the prosecution to introduce any evidence showing the actual or implied knowledge of the Order(DAOD 5012-0) on the part of the accused.

The other sub-elements on the nature and existence of the Order and on whether theaccused's conduct amounted to contravention of that Order are not being challenged at this stage. [8] In reply, the prosecution submits that it offered some evidence on each essential element of these charges so that a properlyinstructed jury (or panel at a court martial) could reasonably decide on the issue.

More specifically, it is suggested that there is someevidence that Sergeant Donohue had actual knowledge of the Order alleged in the charge (DAOD 5012-0) on the basis of evidence to theeffect that he had attended Sexual Harassment/Assault Response and Prevention (SHARP) training in the 1990s and his admission to theeffect that the contents of that training included the notion that the Canadian Forces has a zero tolerance policy when it comes toharassment. Reference was also made to the testimony of Master Warrant Officer Spence and Kelly Russell, to which I will come back toin more detail later.

The Applicable Law [9] The Queen's Regulations and Orders for the Canadian Forces provide, in

article 112.05, paragraph 13:

(13) When the case for the prosecution is closed, the judge may, of the judge's own motion or upon the motion of the accused, heararguments as to whether a prima facie case has been made out against the accused, and: a. if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce theaccused not guilty on that charge; or b. if the judge decides that a prima facie case has been made out in respect of a charge, the judge shall direct that the trialproceed on that charge. [10] Note B to

article 112.05 provides: (

B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essentialingredient such that the accused could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neitherthe credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has beenestablished.

The doctrine of reasonable doubt does not apply in respect of a prima facie case determination. [11] Note B substantially captures the rule that applies with respect to directed verdicts of not guilty at the close of the evidence forthe prosecution as accepted by the Supreme Court of Canada. For instance, the test to be applied was mentioned by Judge Fish, whodelivered the decision for the Supreme Court in R. v.

Fontaine, 2004 SCC 27 , [2004] 1 SCR 702, at paragraph 53: Accordingly, as McLachlin J. explained in Charemski, supra, the case against the accused cannot go to the jury unless there is evidencein the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.[Emphasis in original] [12] That rule was more recently reiterated by Binnie J., speaking for a majority of the Supreme Court in R. v.

Barros, 2011 SCC51 at paragraph 48, A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly

charged jury acting reasonably, would justify a conviction: [citation removed] Whether or not the test is met on the facts is a question oflaw which does not command appellate deference to the trial judge. [13] Indeed, a non-prima facie motion at the close of the prosecution's case is different from a request for an acquittal based onreasonable doubt. The latter is based on the premise that there may be some evidence upon which a jury, properly instructed, mightconvict, but that this evidence is insufficient to establish guilt beyond a reasonable doubt.

Since the concept of reasonable doubt is notcalled into play until all the evidence is in, reasonable doubt cannot be considered unless the accused has either elected not to callevidence or has completed the presentation of his evidence. [14] The court may not take into account the quality of the evidence in determining whether there is some evidence offered by theprosecution on each essential element of each charge so that a properly instructed jury could reasonably decide on the issue; not would orshould, but simply, could. [15] The burden of proof rests on the accused to demonstrate on a balance of probabilities that this test is met.

The test is the same,whether the evidence is circumstantial or direct. However, the application of the test varies according to the type of evidence in theprosecution's case. [16] Where the prosecution's case is based entirely on direct evidence, application of the test is straightforward; if the judgedetermines that the prosecution has presented direct evidence as to every element of each offence, the application must be denied.

Theonly issue will be whether the evidence is true, and that is for the trier of fact to decide. [17] However, where proof of an essential element depends on circumstantial evidence, the test requires the trial judge to ask, ifthe evidence is accepted as true, whether the inference proposed by the prosecution the correct inference. The judge must weigh theevidence by assessing whether it is reasonably capable of supporting the inferences proposed by the prosecution. The judge neither askswhether he would draw those inferences nor assesses credibility.

The issue is only whether the evidence, if believed, would reasonablysupport an inference of guilt: R. v. Arcuri, 2001 SCC 54 , [2001] 2 SCR 828.

Issue [18] In that context, the only question this court has to answer is whether there is evidence on the record upon which a properlyinstructed panel could rationally conclude that the accused is guilty beyond a reasonable doubt, especially regarding the essentialelement of the prejudice to good order and discipline, which, in this case, requires a proof of actual or deemed knowledge by the accusedof the Order alleged to have been breached; namely, DAOD 5012-0. [19] It is to be noted that the issue is so narrowly stated as a result of the fact that the prosecution has not submitted any argumentsto the effect that it could rely on other evidence than a violation of DAOD 5012-0 to establish the essential element of prejudice to goodorder and discipline.

Therefore, the presence of independent evidence demonstrating prejudice to good order and discipline is not inissue in this instance. Analysis [20] In order to make a determination of the issue put before me by the applicant, I must determine if he demonstrated on a balanceof probabilities that there is no evidence at the time of the commission of the alleged offence that he knew or should have known theOrder.

To establish conduct to the prejudice of good order and discipline in the context of the application, it is essential to prove that anaccused either had actual knowledge of the Order before he or she contravened it or is deemed to have had knowledge of that Order. Deemed Knowledge [21] I will deal first with the "deemed knowledge" aspect of the application. Orders applicable to members of the Canadian Forcescannot be presumed to be sufficiently known so as to attract penal responsibility for their violation.

That is because Orders such asDAOD 5012-0 are not published like other instruments whose violation can be enforced by prosecution. The QR&O imposes a

requirement for publication and notification found, on the facts of this case, in

article 1.21, which reads as follows: 1.21 - NOTIFICATION BY RECEIPT OF REGULATIONS, ORDERS AND INSTRUCTIONS Subject to subsection 51(2) of the National Defence Act ( see

article 1.20 - Notification of Regulations, Orders and Instructions - Reserve Force ) all regulations, orders and instructions issued to the Canadian Forces shall be held to be published and sufficiently notified to any person whom they may concern if: a. they are received at the base, unit or element at which that person is serving; and b. the commanding officer of the base, unit or element takes such measures as may seem practical to ensure that the regulations, orders and instructions are drawn to the attention of and made available to those whom they may concern. (See

article 4.26 – Circulation of Regulations, Orders, Instructions, Correspondence and Publications). [ 22 ] As it is referred to at paragraph b., above, I believe it is useful to cite QR&O

article 4.26 to illustrate the extent to which orders need to be "pushed down" to subordinates, especially non-commissioned members. It reads as follows: 4.26 - CIRCULATION OF REGULATIONS, ORDERS, INSTRUCTIONS, CORRESPONDENCE AND PUBLICATIONS

(1) A commanding officer shall ensure that all regulations, orders, instructions, correspondence and publications affecting members, whether in the performance of their duties or in the conditions of their service, are given such publicity as will enable those members to study them and become acquainted with the contents.

(2) Orders relating to any matters requiring special explanation shall be read and explained to non-commissioned members as soon as they are received. [ 23 ] Here, the prosecution concedes that no evidence was presented concerning the first requirement at QR&O 1.21; namely, that there is no evidence that DAOD 5012-0 was received at the base, unit or element at which the accused was serving at the time of the offences. However, the prosecution invites this court to engage in a broad

interpretation of this provision to find that the proven availability at the unit of computers from which the order could be accessed is sufficient and a modern equivalent to receipt of the order on paper at the unit. [ 24 ] I find that this court is not in a position to make such a broad

interpretation. Implementation of electronic publication to replace publication of orders on paper is a complex operation which must be conducted with the support of a sufficient regulatory framework. Electronic publication of QR&O was implemented on 1 January 2006, supported by the passing on that day of QR&O

article 1.22 on electronic publication and notification of QR&O. [ 25 ] No such scheme was implemented for DAODs. It is not for the court to unilaterally extend electronic publication to DAODs without the proper regulatory or administrative foundation, a task that should be left to proper authorities to implement in an orderly fashion as was done for the QR&O in 2006. [ 26 ] Given the total absence of evidence on the first requirement, the court must conclude that the requirement of notification necessary to deem knowledge by the accused of DAOD 5012-0 was not met. The essential sub-element of knowledge of the order could still be met by evidence of actual knowledge however. Actual Knowledge

[27] As for actual knowledge, the prosecution replies to the non-prima facie application by submitting that the following evidencemakes out a prima facie case to the effect that the accused actually knew the content of the Harassment Prevention and Resolution policyof the Canadian Forces: a. Evidence of Master Warrant Officer Spence, coupled with Exhibit 3, the record of his interview with the accused to theeffect that the accused had received Sexual Harassment/Assault Response Prevention training, including a very

summary description ofthat training, which was given in the 1990s and included subjects such as harassment and racist conduct as well as a few do's and don'ts; b. The admission by defence to the effect that Sexual Harassment/Assault Response Prevention training includes the notionthat the Canadian Forces has a zero tolerance policy on harassment; and c. The evidence of Kelly Russell who testified that there is a clear "in-process" at the

section where the accused worked at thetime of the offences, which includes a demand to newcomers to read extensive orientation briefings, including the brief at Exhibit 5,which she introduced at the demand of the defence. She said that Exhibit 5 was the version of the orientation brief that would have beenin use when the accused arrived at the unit in March 2013 and added that it is "possible, but not probable that he would have beenemployed without reading the orientation brief". [28] As it appears from this

summary, the evidence adduced on actual knowledge of the order is circumstantial. In such cases, theperformance of my duty as trial judge on a non-prima facie motion requires that I engage in some weighing of the evidence to assesswhether it is reasonably capable of supporting the inferences proposed by the prosecution. As mentioned in R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828, the issue is only whether the evidence, if believed, could reasonably support an inference of guilt. Inperforming that limited weighing, I have encountered three difficulties with this evidence. a.

First, although there is evidence that the accused attended SHARP training in the 1990s, no evidence has been introduced todemonstrate specifically what was contained in that training at the time and how precisely that training relates to DAOD 5012-0, whichcame into force later, in December 2000. In other words, the evidence does not support the inference that attending SHARP trainingallowed the attendees to know the content of the Harassment Prevention and Resolution policy of the Canadian Forces, as it was stated inDAOD 5012-0 in July 2013, the time of the alleged offences.

Accepting that inference would require concluding that the CanadianForces harassment policy of the 1990s was the same as the one in DAOD 5012-0, a fact on which no evidence has been presented. b. The second difficulty I have with the evidence is that even if there is evidence at Exhibit 3 that the accused knewharassment was not tolerated, it does not mean that it can be inferred that he knew what constituted harassment as per Canadian Forcespolicy at DAOD 5012-0. In the absence of such knowledge, “zero tolerance” is akin to a slogan without much substance. c.

Finally, the prosecution is asking that I infer that the accused had read the brief at Exhibit 5 given the evidence of KellyRussell to the effect that it is "possible but not probable that the accused would have been employed without reading the orientationbrief” and, therefore, that DAOD 5012-0 was brought to the accused’s attention.

The problem I am having with these invitations to inferrelates to the confusing nature of the heading at slide 20 of the brief at Exhibit 5, which reads “Harassment Policy CF/DND” and refers,as source, to DAOD 5016 on civilian conduct and discipline, an order obviously inapplicable to the accused who was a military memberat the time he would have read the brief. I can accept, for the purpose of this application, that there is some evidence indicating that theaccused had read the brief.

I can also accept the submission of the prosecution to the effect that what is required is to bring the attentionof military members to the actual policy, not the precise location where the policy is found, namely in DAOD 5012-0. Yet, in this case,the precise means by which the policy is brought to the attention of the military member, in this case, slide 20 of Exhibit 5, may lead amilitary person reading the heading to conclude that the content – the “Harassment Policy” - is inapplicable to him or her.

This fact isdamageable to the inference the prosecution is asking me to make as to the evidence of knowledge of that policy.

In the circumstances,the inference that the accused must have read the orientation brief cannot be equated with knowledge of the Canadian Forces policy onharassment prevention and resolution. [29] In addition to these three concerns stemming from the evidence presented by the prosecution, I must take into account a factoriginating from the accused in a statement related in Exhibit 3, to the effect that once asked by Master Warrant Officer Spence if he was“familiar with the Canadian Forces policy on harassment”, he replied, "Not on the top of my head. I would have to look it up.

I wouldassume it is not tolerated." [30] Where the prosecution's evidence consists of or includes circumstantial evidence, I must engage in a limited weighing of thewhole of the evidence, i.e., including any exculpatory evidence to determine whether a reasonable jury, properly instructed, could returna verdict of guilty. Even taking the case for the prosecution at its highest and attempting to resolve competing permissible inferences in

favour of the prosecution, I'm left with concerns on the sufficiency of the prosecution's circumstantial evidence on the actual knowledgeof the order. Indeed, as decided by the Ontario Court of Appeal in R. v. Figueroa, (2008) 2008 ONCA 106 , 232 C.C.C. (3d) 51,it is not sufficient that a jury could find the guilty inference essential to the Crown's case to be reasonable. There must be evidence fromwhich it could conclude that this inference is more reasonable than any other inference available on the evidence. [31] I have concluded that it is not the case here.

The evidence adduced by the prosecution is not reasonably capable of supportingthe required inferences necessary to conclude that the accused had actual knowledge of the content of the Harassment Prevention andResolution policy of the Canadian Forces found in DAOD 5012-0.

Conclusion [32] Having previously concluded that there was no evidence presented on one of the requirements necessary to establish deemedknowledge of the Order in DAOD 5012-0, I conclude that Sergeant Donohue, as the applicant in this matter, demonstrated on a balanceof probabilities that no evidence was adduced to prove that, at the time of the commission of the alleged offences, he had the requisiteknowledge of the standard of conduct required to prove prejudice to good order and discipline, an essential element of the offences undersection 129 of the National Defence Act for which he is charged. [33] Considering all the essential elements of the six offences of conduct to the prejudice of good order and discipline on thecharge sheet, it is my conclusion there is no evidence on the record upon which a properly instructed panel could reasonably concludethat the accused is guilty beyond a reasonable doubt of those offences. [34] It is my decision that a prima facie case has not been made out against Sergeant Donohue on the second, fourth, sixth, eighth,ninth, and tenth charges on the charge sheet.

FOR ALL THESE REASONS, THE COURT [35] GRANTS the application; and [36] FINDS the accused not guilty of the second, fourth, sixth, eighth, ninth, and tenth charges. Counsel: The Director of Military Prosecutions, as represented by Major A.C. Samson. Mr. D. Anber, Counsel for Sergeant M.J. Donohue.