MAJOR B.M. WELLWOOD Appellant v. HER MAJESTY THE QUEEN, 2017 CMAC 4

Date: 20170623 Dockets: CMAC-571 Citation: 2017 CMAC 4 [ENGLISH TRANSLATION] CORAM: BELL C.J. COURNOYER J.A. GLEASON J.A. CMAC-571 BETWEEN: MAJOR B.M. WELLWOOD Appellant and HER MAJESTY THE QUEEN Respondent Heard at Ottawa, Ontario, on April 26, 2016. Judgment delivered at Ottawa, Ontario, on June 23 2017. REASONS FOR JUDGMENT BY: COURNOYER J.A. GLEASON J.A. DISSENTING REASONS BY: B. RICHARD BELL c.j. Date: 20170623 Dockets: CMAC-571 Citation: 2017 CMAC 4 CORAM: BELL C.J. COURNOYER J.A. GLEASON J.A. CMAC-571 BETWEEN: MAJOR B.M. WELLWOOD Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT Table of contents I - Overview 1 II – Facts 6

III - Issues 19 A - Introduction 20 B – Should the military police officer have obeyed the appellant’s order? 23 C – Competing obligation of the chain of command to locate a member in distress 27

(1) The evidence 28

(2) Parties’ positions 30

(3) Analysis 31 D – Issues arising from those raised by the parties 57

(1) The instruction regarding judicial notice of several statutes, regulations, orders and instructions 57

(2) The inclusion of the text of several legislative provisions in the instructions to the panel 60

(3) A Baxter instruction 62

(4) The instruction regarding the contradictory versions 64

(5) The failure to object to the instructions 64 IV - Epilogue 65 I. Background 1 II. Excerpts from the evidence, oral arguments and instructions to the Panel 3 III. Analysis 9 IV. Conclusion 12 COURNOYER J.A. I - Overvi ew [ 1 ] On February 5, 2012, around 6:04 p.m., the spouse of a member who was participating in a military exercise called 911 emergency services.

She informed the dispatcher that her spouse had expressed suicidal thoughts that involved the use of a firearm. [ 2 ] This 911 call led to the intervention of the chain of command and the military police in order to locate the member. [ 3 ] The military police officer responsible for finding him, Corporal Plourde, irrupted in the temporary camp set up for this exercise in a military 4x4 vehicle, lights flashing, without stopping at the gatehouse at the entrance to the camp.

This gatehouse had been set up in order to ensure the safety and proper operation of the camp. [ 4 ] This behaviour, similar to the previous behaviour of other military police officers during the exercise, did not please the appellant, who held the position of Officer Commanding Service Company and was responsible for logistics and support for the infantry battalion during the exercise. [ 5 ] According to her testimony, she informed the police officer that the chain of command was looking for the member in question, but a one-way conversation quickly ensued.

The police officer invoked his authority to intervene and threatened to have the appellant charged with obstruction. At one point, she ordered him, rudely, to leave the area. [ 6 ] The situation degenerated.

The tone was acrimonious. [ 7 ] The appellant stated that she did not want to obstruct the police officer’s work and that she had tried to share the information she had, to inform him of the ongoing efforts to find the member and explain what company he was in, but he would not listen. [ 8 ] According to the police officer’s diverging account, the appellant informed him that the member was not on the premises and that the chain of command was handling the situation. She allegedly added that nobody was going to give him the information he was looking for, and she denied him access to the command post.

The military police officer felt that only the military police could act in these circumstances. [ 9 ] The police officer then tried to access the command post located in a tent, to obtain the information that would be useful for his

intervention, information which, according to him, the appellant was hiding from him. The appellant tried to stop him. The military police officer shoved her, and she lost her balance.

The police officer finally entered the tent and pushed the appellant aside. [ 10 ] An officer present then confirmed to the military police officer, who seemed surprised, essentially the same information the appellant stated she had given the police officer, that is, regarding the chain of command’s ongoing efforts to locate the member in distress. [ 11 ] The member in distress was eventually located by members of his platoon. [ 12 ] This is the background to a situation that degenerated, but that was essentially a regrettable dialogue of the deaf where each party, feeling self-important with authority, spoke without listening to the other. [ 13 ] Major Wellwood was found guilty, by a panel of a General Court Martial (“the panel”), of two charges: first, of having obstructed a military police officer in the execution of his duty; and second, of conduct to the prejudice of good order and discipline for behaving with contempt towards him during these events. [ 14 ] In the absence of the panel, the trial judge also acquitted the appellant on the second count, that is having obstructed a military police officer in the performance of his duties because the prosecution had not established a military standard that would apply in the circumstances. [ 15 ] The main issue in this case is whether the instructions given to the panel of the General Court Martial included information essential to determining whether the appellant was guilty of the offence of obstructing the work of a police officer and of conduct to the prejudice of good order and discipline towards the military police officer. [ 16 ] The appellant submits that the facts in this case involve the limits military law imposes on the powers of the military police when intervening to assist a member in suicidal distress rather than during an investigation into a service offence. [ 17 ] According to the appellant, the charge the military judge gave to the panel was incomplete because the panel should have received the following instructions: (1) all members are subject to a duty to promote the welfare of their subordinates; (2) every officer in the Canadian Forces is a public officer within the meaning of

section 129 of the Criminal Code ; (3) the military police officer, who was not conducting an investigation into a service offence, had to obey the lawful commands and orders of Major Wellwood. [ 18 ] In my opinion, the panel should have been informed specifically of the appellant’s duty to find the member in distress because of her obligation to promote the welfare of her subordinates. [ 19 ] This instruction is crucial to the assessment of two essential elements of the offence with which she was charged: (1) whether the military police officer was in the execution of his duty when he used force against the appellant to enter the command post tent; and (2) whether the appellant intended to obstruct the work of the military police officer. [ 20 ] A complete charge to the panel would also likely have influenced the verdict on the count alleging that her behaviour towards the military police officer constituted conduct to the prejudice of good order and discipline. [ 21 ] At trial, the appellant noted that the force the police officer used when carrying out his common law duty to find the member in distress exceeded what was reasonably necessary in the circumstances. [ 22 ] The prosecution therefore had to establish, beyond a reasonable doubt, that the military police officer’s intervention was reasonably necessary.

This would have constituted a [translation] " “justifiable use” " of police power, as the police officer would then be considered to be acting in the execution of his duty. However, if the panel had a reasonable doubt as to whether the police officer’s intervention was reasonably necessary, the appellant would be acquitted of the charge of obstructing a military police officer. [ 23 ] For the following reasons, the panel had to consider the appellant’s duty to find the member in distress when assessing whether the use of force by the military police officer was reasonably necessary in the circumstances.

Similarly, the existence of this duty could have influenced the panel’s decision regarding whether she had intended to obstruct the police officer in the execution of his duty. [ 24 ] This duty is also crucial to the assessment of the charge regarding whether her behaviour towards the military police officer constituted conduct to the prejudice of good order and discipline, of which she was found guilty. [ 25 ] I find that a new trial should be ordered.

II – Facts [ 26 ] I have already presented the essence of the relevant facts, but the issues raised require more clarification, particularly with regard to the appellant’s testimony and that of Major Sylvain (he was captain at the time of the events), the officer who managed to defuse the situation. [ 27 ] Since the parties refer to the

summary of the facts the military judge presented to the panel with regard to the first charge, I propose using it with a slight adaptation. [ 28 ] On February 5, 2012, around 6:04 p.m., the spouse of a member called 911 emergency services to report receiving a call from her spouse, deployed on an exercise in the Beauce region, during which he confided that he had suicidal thoughts involving the use of a firearm. [ 29 ] The emergency call led to several communications between the 911 emergency call centres of the Sureté du Québec, of the Military

Police in Valcartier and the one on site in Beauce for the purposes of a military exercise. [ 30 ] Corporal Plourde, a military police officer assigned to this exercise in an operational role as police officer responsible for law enforcement, was given the task of locating the individual in question, who belonged to the 2nd Battalion Royal 22 e Régiment, and taking measures to ensure that he was not in danger. [ 31 ] Corporal Plourde went to the area occupied by the service company of the 2nd Battalion, Royal 22 e Régiment, which is under Major Wellwood’s command.

A reservist, Private Simard-Bolduc, accompanied him and drove the military police vehicle. [ 32 ] Corporal Plourde was wearing the black military police uniform, a bullet-proof vest supplied with his uniform, his service weapon, and the other accessories of his military police uniform. Private Simard-Bolduc was wearing combat clothing and was not armed. [ 33 ] Around 7:36 p.m., they went to the gatehouse for the 2nd Battalion service company camp. It was dark.

Without formally identifying themselves and without announcing the reasons for their presence to the gate guard, the police officers turned on their flashing lights so they would be given access. [ 34 ] The gate guard moved a barrier aside to give them access, but he promptly contacted the command post tent to inform them that members of the military police had just entered the area without providing reasons for their presence.

He also made sure to describe the behaviour of the police officers. [ 35 ] This type of behaviour by police officers was not new, and it irritated the appellant because of staff and equipment safety reasons in an area with little lighting at night, and where communications equipment are limited and fragile. [ 36 ] She advised the members of her command post inside the tent that she would take care of the situation. [ 37 ] At that moment, the military authorities, including the command post under Major Wellwood’s responsibility, had already been informed of the situation regarding the member who had allegedly made suicidal statements.

They were trying to find him to take care of him. The information sent was not clear, and it was difficult to clearly identify to which company he belonged. [ 38 ] Major Wellwood exited her command post tent and went towards the military police vehicle to inquire about the situation and above all to ask the police officers why their vehicle did not stop at the gatehouse. [ 39 ] It is not clear whether she passed by Corporal Plourde on her way to the vehicle. She knocked on the window of the vehicle a few times.

She then went around the vehicle to speak to the driver, Private Simard-Bolduc, who was about to get out. [ 40 ] Corporal Plourde joined them and interposed himself between them. [ 41 ] Major Wellwood asked them why they had not stopped at the gatehouse. Corporal Plourde stated that they were there because of the 911 call. [ 42 ] Corporal Plourde then invoked his power to act in accordance with the powers conferred by the Act respecting the protection of persons whose mental state presents a danger to themselves or others , CQLR, c.

P-38.001 . [ 43 ] Major Wellwood replied that the chain of command, including the unit commanding officer, had already been informed of the situation and that the military authorities were handling it. [ 44 ] Corporal Plourde alleged that Major Wellwood told him to calm down and that the situation was not under military police jurisdiction.

Major Wellwood allegedly added that the member was not at her command post and insisted on learning why the police officers had not stopped at the gatehouse. [ 45 ] Corporal Plourde replied to Major Wellwood that it was a police matter and not the responsibility of the chain of command, and that she should not confuse her rank with his police authority. At this time, the tone of both members was acrimonious. [ 46 ] Corporal Plourde addressed Major Wellwood using the informal " “you” " in French.

They continued their exchange until Major Wellwood, also using the informal " “you” " , asked him in no uncertain terms to leave the premises. [ 47 ] Corporal Plourde ignored Major Wellwood’s explicit requests and headed towards the tent to enter it, even though Major Wellwood had formally forbidden him to do so. She passed him and turned to face him at the entrance to the tent. [ 48 ] The acrimonious exchanges continued, and Corporal Plourde pushed Major Wellwood with his hands, at shoulder or chest level.

She lost her balance at the entrance to the tent. [ 49 ] Corporal Plourde testified that he wanted to enter the tent because he thought that Major Wellwood would order her subordinates not to provide him with the information needed to continue his investigation, which is what she did, according to Officer Plourde’s testimony. However, the officers inside the command post, who testified at the trial, did not corroborate this aspect of Corporal Plourde’s testimony. [ 50 ] He therefore moved her to the left by grabbing her arm.

The officers present, Pelletier, Turcotte and Sylvain, intervened to find out what was happening. [ 51 ] Corporal Plourde was nervous; his face was red, and his hand was close to his weapon. Too close, according to Major Sylvain. [ 52 ] Major Sylvain asked him what he was doing in the CP-8 tent and how he could help him. According to his testimony, Corporal Plourde replied that he was in a P-38 situation which superseded, if not negated, the chain of command and that this gave him full rights

to act. [ 53 ] Major Sylvain repeated the information that Major Wellwood had already given him, according to her testimony, to the effect that the chain of command was already aware of the situation and that efforts were being made to find the individual. According to Major Sylvain, this statement seemed to unsettle Corporal Plourde, who apparently did not believe that the chain of command was actually aware of the situation.

Major Sylvain then informed him that the military authorities were still at the stage of verifying whether the person was at the battalion command post or at the sugar shack where more than a hundred members of the battalion were watching Super Bowl 2012 together. [ 54 ] Major Sylvain left the tent with Corporal Plourde and accompanied him to his vehicle to exchange relevant information and contact details. At that time, the police officers left the area to go to the sugar shack. [ 55 ] Major Sylvain then tried to send a

summary to Corporal Plourde by cell phone, but was unsuccessful. Before he could go to the sugar shack, the police operation was cancelled. Corporal Plourde’s superiors ordered him to return to Military Police Headquarters at Beauceville Armoury. [ 56 ] Members of the unit of the member being sought found him alone in a vehicle near the sugar shack. [ 57 ] The military judge did not summarize the appellant’s testimony during his instructions regarding the charge of obstruction, and he stated that [translation] " “it is not useful for the purposes of this

summary to repeat the statements allegedly made by either party in this case” " (A.B. Vol. III, at page 498). [ 58 ] At this time, I would note this aspect to which I will return later because of the obligation of the trial judge to relate the evidence to the law in his or her instructions to the jury: R. v. Daley , 2007 SCC 53 , [2007] 3 S.C.R. 523, at para. 57 ; R. v. Saleh , 2013 ONCA 742 , 303 C.C.C. (3d) 43, at paras. 140-145 . Indeed, the charge to the jury must set out the issues and the essential evidence bearing on them: R. v.

MacKay, 2005 SCC 75 , [2005] 3 S.C.R. 607. [ 59 ] That said, the military judge partially summarized the appellant’s testimony in his instructions with regard to the charge of conduct to the prejudice of good order and discipline. I reproduce it in its entirety: [translation] In assessing this evidence, I ask you to consider the first moments of the meeting between Major Wellwood and the military police officers when Major Wellwood asked them why they had not stopped at the gatehouse that had been installed by CP- 8 or the service company.

Also review Corporal Plourde’s response provided after this statement by Major Wellwood. Once she was informed of the reasons for the police officers’ presence, she informed them that the chain of command, including the unit commanding officer, was aware of the situation and was taking care of it. Major Wellwood allegedly told them the member was not on the premises, the CP-8 premises, and the search continued.

It seems that the information obtained up to that moment, and I refer to your memory of the evidence, indicated that the member was a member of the command company, whereas clearly, CP-8 is used or was used by the service company. The evidence indicates that Corporal Plourde was not satisfied with the statements given by Major Wellwood at that time, and Corporal Plourde insisted on telling Major Wellwood that this was none of the chain of command’s concern.

Major Wellwood allegedly repeated that the chain of command had taken action and that efforts were being made to find the individual and take care of him as needed. Major Wellwood then stated that the member was not on the CP-8 premises and that the search was continuing . It seems that at that time, Corporal Plourde did not appreciate the statements, neither the words nor the tone and attitude of Major Wellwood towards him in this case, and said that she should not confuse his authority as a military police officer with her rank as major. Then we see the situation deteriorated quickly.

The versions of Major Wellwood and Corporal Plourde are hard to reconcile from this moment on, and it will be up to you to make an assessment in accordance with all the evidence you consider to be credible and reliable . However, it seems that Corporal Plourde quickly began using the informal “you” with Major Wellwood and this allegedly contributed, and at any rate it did not contribute, to the contrary, to calming the atmosphere between Major Wellwood and Corporal Plourde. According to Corporal Plourde, he tried to calm the situation, but this version of the events was contradicted by Major Wellwood.

It appears that the situation degenerated to the point that Corporal Plourde went to and entered the CP-8 tent despite Major Wellwood’s instructions not to, and he used physical force to push her at the entrance to the tent to the point she lost her balance. Corporal Plourde testified that he allegedly told Major Wellwood to move aside and, addressing her with the informal “you”, grabbed her forcibly by the arm because, in his opinion, she had ordered her subordinates in the tent not to give him any information whatsoever.

Major Wellwood’s version differs on certain points, in particular regarding what she allegedly said to her subordinates. I ask you to review all the testimony presented, in particular that of Captain Pelletier and Captain Turcotte, and that of Major Sylvain with regard to the events that occurred in the CP-8 tent. During these events, Major Wellwood told Corporal Plourde many times to leave the premises using harsh language sprinkled with many epithets I will not repeat. One must not conclude that using inappropriate language, even if it is abusive, constitutes contempt in itself.

The entire situation must be taken into consideration. [Emphasis added] (A.B., Vol. III, at pages 519-520)

[ 60 ] Because of the importance of the appellant’s testimony regarding the issues the panel had to resolve, it is necessary to reproduce certain excerpts. [ 61 ] The appellant first explained that she had calmly asked Corporal Plourde why the military police officers had not stopped at the gatehouse. He replied that it was a police matter that did not concern the chain of command and, pointing at the appellant’s rank on her uniform, told her not to confuse her rank with the authority of a police officer. [ 62 ] According to the appellant, the exchange between them continued as follows: [translation] Q.

Ok so how did the conversation or exchange continue? A. He repeated many times not to interfere in a police matter, not to prevent him from doing his work, to which I replied I would not do anything to hinder you from doing your work, I merely want to explain the camp rules to you . At that moment, he still had not asked any questions. He told me at one point it was a call for a suicidal case; I explained to him that is correct, I understand, I am aware of the situation, the chain of command has already been advised, and we are doing everything we can to try to find the individual.

Again, often, in fact I would say every time, I could not even finish my sentence because he would interrupt me to say things such as the chain of command has nothing to do with this, you cannot, anyway, as if we could not contribute anything new, without asking clear questions and without letting me provide the information I was trying to give him. The clearest thing I got during this discussion was at one point when he said: what we want to know is, is he in Company A or is he in Company B.

I said there is more than— he isn’t in either Company A or in Company B, and I tried to explain to him that he’s in the command company, but he didn’t even give me time to tell him . He cut me off, he said, I can’t remember exactly what he said, but he cut me off to say, once again, something like it is not the chain of command or it is the authority of the military police. [Emphasis added] (A.B., Vol. II, at pages 362-363) [ 63 ] The confrontation continued as follows, according to the appellant: [translation] Q. So you said at some point, he was pointing at you.

You tried to tell him what you knew, he interrupted you, so how did this continue, this— A. Well, when he— Q. —this non-discussion? A. —told me, when he told me—when he pointed at me with his finger, and he said I shouldn’t confuse rank and authority, I saw that, clearly, there was—the direction the discussion was taking would not help the situation at all with regard to the safety of the camp, or with the situation with the suicidal individual.

Therefore, I took a mental step back, I told him, listen, said, calm down, and I asked him to explain what he wanted, and again, he said the same type of replies as before. Then even talking to him, asking him to calm down, it seemed to frustrate him more because he raised his voice again and became even more aggressive. Eventually, I told him, listen, I gave you the information I have , then he was still aggressive. I told him, either you calm down or you leave. He told me . . . Q. Are those the exact words you used? A. Yes. Well, I think so.

The first time, after that, my words changed a lot, but the first time it was, you calm down or you leave. Then, well, actually, it upseted him a lot, and he said, listen, I am a military police officer, I can do what I want, I can go where I want. I said ok. I replied, get the hell out, meaning I did not have anything more to add to the situation, I could clearly not help, and it seemed to be completely pointless to me, so I turned around to go into the command post tent. Q. At any time did you refuse to assist him? A. Outside the tent— Q. Outside?

A. — I never refused, and I answered every question he asked me . Q. So you—you turned around, you returned to the tent, what was your intention at that moment, going back to the tent? A. I was sure that despite what I had told him, he would not go away, apparently, so my intention when heading to the tent was, one, to stop the altercation because if I stayed there I did not see how I could resolve the situation, so I removed myself from the situation, so it would not escalate.

And at the same time, it gave me the chance, by going to the command post, to call someone else who could intervene, answer the military police officer in a way he might be more receptive to. [Emphasis added] (A.B., Vol. II, at pages 363-364) [ 64 ] The appellant added the following: [translation] Q. During this interaction, outside, we heard testimony from Corporal Plourde that he advised you that you were committing obstruction? A. Yes, I heard that. Q. What do you have to say about it? A.

It’s true that he told me a few times that I was committing obstruction; however, he never said in what way I was committing obstruction, and when he said it to me, I said to him, I am not preventing you from doing anything . So that’s it, yes, he told me but never said how . Q. Did you understand, at that moment, during the initial interaction, did you understand what he was looking for in terms of information? A. Yes, I could deduct what he was looking for as information. Q. Did you give him the information he was seeking? A. I tried to provide all the information I had, but again, he was not

hearing it because he interrupted me every time I tried to talk to him . Q. So, you turned around, you went towards the entrance to the tent, and what happened? A. From the police vehicle to the entrance of the tent, it must have been around 20 metres, probably; it’s a pretty narrow area. There was the generator and the satellite on one side and then the tent on the other side, so it was a small trail.

I saw in my—my peripheral vision while walking, that he was following me, so while walking, I turned slightly to tell him, don’t follow me, or I probably said get the fuck out of here, said, you will not enter the command post. Q. And why did you say that to him? A. Well, because I truly did not want the altercation to continue, especially not in front of my subordinates who were inside the tent.

I wanted to create some distance between the two of us and give someone the opportunity to go get him the same information I was trying to give him and calm the situation down so he could continue with the work he had to do . [Emphasis added] (A.B., Vol. II, at pages 364-365) [ 65 ] The appellant then testified very clearly that she never tried to prevent her subordinates from cooperating with Corporal Plourde. She even stated that she wanted them to, in order to help the military police officer in his investigation: [translation] Q.

At any time, did you try to prevent your subordinates from cooperating with Corporal Plourde? A. Never. It was actually my goal, it was for them to help him and end this exchange. (A.B., Vol.

II, at page 367) [ 66 ] As we can see, the appellant’s version could raise a reasonable doubt with regard to her intention to obstruct the military police officer’s work. [ 67 ] It seems essential to me to reproduce here certain excerpts from Major Sylvain’s testimony; he was a witness for the prosecution, and was able to finally defuse the situation. [ 68 ] According to Major Sylvain, the police officer stated that the nature of his intervention superseded, if not negated, the chain of command, and that he had an authority that gave him full rights to act: [translation] Q.

Once Major Wellwood headed towards the phone, the other person entered, if you could continue. What happened, exactly? A. There was clearly a high level of aggression from both sides. Words were exchanged, I cannot say them exactly, but there was obviously a fight going on between the two. To sum up, Major Wellwood said she was going to call the commanding officer of the 2nd Battalion about the situation, that we didn’t understand; and then the military police officer said he had the power to arrest her if needed and that she better get out of his way, that type of comment.

This exchange lasted several seconds, maybe less than a minute, but it still took quite a while. Then from my perspective, the conversation did not seem to be going anywhere, and it was more of a fight than a conversation. I finally intervened orally between the two people, I asked the military police officer, well, what he was doing there and how we could help him at the CP-8.

He replied—he replied that he was in a P-38 authority situation, which is an expression I did not know—so I did not know at the time what that meant, and that the situation and that this authority rendered superseded or negated any chain of command, and therefore he had full authority over the place and that it gave him full rights. At that time, I believe I surprised him a little, I said: well, it must be about the situation with the guy who is potentially suicidal, we are aware of it and we are currently searching. I think it surprised him because it threw him off balance.

My understanding was that he did not believe we were aware of the situation . [Emphasis added] (A.B., Vol. II, at pages 283-284) [ 69 ] The military police officer’s claim to have limitless authority to intervene and his surprise when informed that the chain of command was handling the situation corroborate the appellant’s testimony in many ways. [ 70 ] According to Major Sylvain, the military police officer seemed more preoccupied with justifying his authority than obtaining information that would help locate the member in distress: [translation] Q. Ok.

Now, turning to your perception of the military police officer’s attitude, from what I understand, it took you some time before you figured out what he wanted. Is this correct? A. Correct. It took, I cannot give you an exact time, but it took a long time before we got to the subject of the nature of his intervention. There was a lot of communicating to justify his authority and a lot of emphasis on the fact that the chain of command no longer had any significance, much more than asking us for information or attempting to locate the member . Q. Ok.

So when he was talking to you, you mentioned P-38, you also mentioned that at that time you did not know what P- 38 was? Is this correct? A. Yes, at that time, I did have a good 15 years in the Forces with solid training, was deployed as adjutant and this is not an expression that I had—that I knew or it was not a protocol I was aware of at that time, I will make no secret of the fact that I did my research— Q. Since then. A. —since then, and now I am a little more comfortable with what it means.

Q. So for you, essentially, what this police officer was expressing was not requests but justifications for his attitude. Is this aproper

summary of what you said? A. As I understood it, the military police officer was more interested in justifying hisauthority than solving the problem situation. Q. Ok. You characterized his attitude as aggressive; in fact the attitude of both was actually aggressive. At one point therewere aggressive exchanges; the military police officer was also excited? A. That’s right, excited. He was showing signs Ifound worrisome, redness in the face, rapid breathing, on the tips of his toes, hands too close, for my level of comfort, to hisweapon, and just a very aggressive posture in the CP. [Emphasis added] (A.B., Vol.

II, at pages 288-289) III - Issues [71] The appellant raises three grounds of appeal against the instructions the military judge gave the panel: (1) he neglected to informthe panel of the appellant’s duty to promote the welfare of her subordinates; (2) he did not instruct the panel that all officers of theCanadian Forces must be considered as public officers within the meaning of

section 129 of the Criminal Code; (3) he did not inform thepanel that all officers and non-commissioned members have a duty to obey the lawful commands and orders of a superior, except policeofficers for the purpose of an investigation into a service offence. A - Introduction [72] In my opinion, the appellant is correct in stating that the instructions to the panel were insufficient.

In fact, the instructions were notcarefully tailored to focus on the key evidence and the essential issues, considering the particular context of this case. [73] It is true that the parties’ positions complicated the issues unnecessarily. However, by following them strictly and thoroughly, themilitary judge’s charge was needlessly complex. [74] Indeed, it contains elements that were not necessary but were likely to distract the panel from the true issues in that trial, namely,the appellant’s intent and whether the police officer’s intervention was justified because it was reasonably necessary in thecircumstances.

I am of the opinion that a great number of the instructions in that charge could have and should have been left out. [75] More specifically, the charge to the panel included a fundamental omission, informing the panel, in the instructions regarding theoffence of obstruction, of the appellant’s competing obligation to locate the member in distress. [76] This critical omission is exacerbated by the following elements: (1) the charge to the panel contains unnecessary citations of manylegislative and regulatory provisions without including an appropriate warning about their use; (2) it does not adequately define theappropriate role of the appellant as representative of the chain of command in assisting a member in suicidal distress, in that the judgedid not instruct the panel on the relevance of this duty when assessing the appellant’s intent and whether the force used by the policeofficer was reasonably necessary; (3) finally, the connection of the evidence to the law was insufficient, as the trial judge did notsummarize certain critical elements in the opposing version presented by the appellant. [77] I must note that my intention is not to unfairly or unjustly criticize the experienced military judge who presided over the trial.

Hedid not have the benefit of the principles laid down by the Supreme Court in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760. [78] In that case, the Supreme Court renewed its invitation to trial judges to simplify their jury charges, but it also noted the obligation ofthe parties to assist the trial judge in crafting a jury charge that provides clear and comprehensible instructions on the positions they aredefending: Rodgerson, at paras. 44-49.

On this point, of particular interest are the observations of Professor Lisa Dufraimont, R. v.Rodgerson, Commentary, (2015), 2015 SCC 38 , 21 C.R. (7th) 1, pp. 2-3, as well as the analysis of S. Casey Hill,David M. Tanovich and Louis P.

Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., Toronto, Thomson Reuters, 2016, Year inReview: 2015 - Archived, para. 2015:20.40, pp. 2015-14 to 2015-19. [79] The military judge was faced with parties who defended, during the trial and before this court, rigid and inflexible positionsregarding the legitimacy of the intervention of the chain of command or the military police in circumstances such as the one in this case.Their positions did nothing but obscure the true issues of the matter without making the military judge’s task any easier. [80] The parties were supposed to assist the military judge in crafting a concise

summary including instructions that clarify and simplifythe issues in dispute. [81] However, I will point out again, the military judge was confronted with legal issues that had been unnecessarily complicated by theblack-and-white positions of the parties. [82] Clearly, it is easier to simplify things now with the benefit of hindsight. [83] I find that the charge to the panel did not provide it with sufficient guidance on how it should use and assess all the evidence,including the appellant’s version.

The panel was supposed to consider the competing duties of the chain of command and the militarypolice with regard to assisting a member who had expressed suicidal thoughts, in order to decide whether it had been proven, beyond areasonable doubt, that the military police officer was acting in the execution of his duty and whether the evidence presented by theprosecution established, beyond a reasonable doubt, the appellant’s criminal intent. [84] I will first address the appellant’s third ground of appeal, namely, the issue of the military police officer’s duty to obey her duringthe incident.

[85] This issue was a useless distraction in relation to the true issues.

It is true that the facts presented to the panel highlight theconfrontation between a military police officer who erroneously believed that his power to intervene had no limits and an officer whoseemed to think that the situation should be managed solely by the chain of command. [86] For this reason, I would hope, as did the military judge in his sentencing judgment, that this case will generate a willingness tobetter define the respective roles of the chain of command and the military police in similar circumstances and to establish clearerguidelines for future interventions of this type. [87] I will now answer the strict question of law the appellant raised, which alleges that the military police officer should have obeyedher.

B – Should the military police officer have obeyed the appellant’s order? [88] During final arguments, counsel for the appellant asked the panel to find that the military police officer should have obeyed theorder given by the appellant (A.B., Vol.

III, at pages 419, 420 and 424). [89] In his instructions, the military judge specifically referred to the appellant’s position when he summarized the parties’ positions. [90] First, he stated that, according to the prosecution, the appellant’s order to leave the premises (the order) and her preventing access tothe tent constituted obstruction of the work of a military police officer (A.B., Vol. III, at page 524). He then went on to summarize theposition of the defence, which was that the police officer should have obeyed this order (A.B., Vol.

III, at pages 525-526). [91] On this issue, the appellant’s position does not hold water. [92] The principle of the independence of the police when faced with an executive power is well entrenched in Canadian law and is notat all in doubt. [93] In R. v.

Campbell, (SCC), [1999] 1 S.C.R. 565, Justice Binnie addressed the issue of the relationship between thepolice and the executive branch of the government in the context of determining the immunity that applied to RCMP officers who hadoverstepped the legal limits of their mandate while engaging in drug trafficking as part of a "“reverse sting”" operation involving the saleof illegal drugs by police to the leaders of a drug trafficking organization. [94] He made the following observations regarding the principle of the independence of the police: 27 The Crown’s attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationshipbetween the police and the executive government when the police are engaged in law enforcement.

A police officerinvestigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public officeinitially defined by the common law and subsequently set out in various statutes. In the case of the RCMP, one of therelevant statutes is now the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10. . . . 29 It is therefore possible that in one or other of its roles the RCMP could be acting in an agency relationship with theCrown.

In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminalinvestigation, and in that regard the police are independent of the control of the executive government. The importance ofthis principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forces as long agoas McCleave v. City of Moncton (1902), (SCC), 32 S.C.R. 106.

This was a civil case, having to do withpotential municipal liability for police negligence, but in the course of his judgment Strong C.J. cited with approval thefollowing proposition, at pp. 108-9: Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature.Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising afunction of government, but this does not render them liable for their unlawful or negligent acts.

The detectionand arrest of officers, the preservation of the public peace, the enforcement of the laws, and other similarpowers and duties with which police officers and constables are entrusted are derived from the law, and notfrom the city or town under which they hold their appointment. [95] When military police officers perform activities related to law enforcement, the principle of police independence in Campbellapplies to the military police in its relationship with the chain of command with regard to these activities, except as authorized under theNational Defence Act (NDA): Kent Roach, Police Independence and the Military Police (2011), 49 Osgoode Hall L.J. 117, at pp. 132and 139-140. [96] The independence of the military police is explicitly enshrined in

section 250.19 of the NDA, under which a military police officerwho conducts or supervises a military police investigation and who believes on reasonable grounds that any officer or non-commissionedmember or any senior official of the Department has improperly interfered with the investigation may make a complaint against thatperson. [97] The NDA clarifies the nature of the relationship between the chain of command of the Canadian Forces and the chain of commandof the military police. [98] The Canadian Forces Provost Marshal is responsible for investigations conducted by any unit or other element under his or hercommand (subsection 18.4(

a) of the NDA). These duties are carried out under the general supervision of the Vice Chief of the DefenceStaff (subsection 18.5(1) of the NDA), who may issue general instructions or guidelines in writing in respect of the Provost Marshal’s

responsibilities. The Provost Marshal shall ensure that these instructions and guidelines are available to the public (subsection 18.5(2) ofthe NDA). [99] The Vice Chief of the Defence Staff, too, may issue instructions or general guidelines in writing in respect of a particularinvestigation (subsection 18.5(3) of the NDA). The Provost Marshal shall ensure that these are made available to the public (subsection18.5(4) of the NDA). [100] The independence of the military police with respect to the chain of command in the course of law enforcement activities isindisputable.

Moreover, contrary to another of the appellant’s arguments, law enforcement activities also include the duty and powers ofpolice officers under the common law and not restricted to investigations regarding service offences. [101] Police officers act lawfully only if they are exercising an authority conferred by statute or that is derived from their duties undercommon law. Police officers responding to a 911 emergency call will be acting in the exercise of their authority, since their interventionderives as a matter of common law from their duties: Dedman v.

The Queen, (SCC), [1985] 2 S.C.R. 2, at p. 28; R. v.Godoy, (SCC), [1999] 1 S.C.R. 311, at paras. 15-16; R. v.

Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 21 and25. [102] In my opinion, this issue must not be confused with the issue of whether the military police officer was carrying out his dutieswhen he entered the command post tent and whether the appellant’s behaviour justified the conclusion that she voluntarily obstructed themilitary police officer’s investigation on February 5, 2012. [103] For this reason, I feel that the appellant’s third ground must be dismissed, because the principle of police independence as stated inCampbell applies to the military police.

Corporal Plourde was not required, in the specific circumstances of the case, to obey theappellant’s order not to enter the command post tent. [104] In the context of this case, this conclusion is sufficient. It would be unwise and inappropriate to extrapolate regarding hypotheticalsituations that are not raised by the appeal. [105] This does not, however, dispose of the question as to whether the military police officer could use force to enter the command posttent, as this behaviour was reasonably necessary under the circumstances.

C – Competing obligation of the chain of command to locate a member in distress [106] The main issue in this case is to determine whether the competing obligation of the chain of command, in this case that of theappellant and her subordinates, to locate the member in distress should have been the subject of a specific instruction to the panel. [107] I would first note the position of the respondent in her memorandum, which states that this obligation is addressed in aninstruction by the judge in his instructions regarding the third charge.

I conclude that the respondent admits that such an instruction wasnecessary. [108] However, I find that because of issues that were to be resolved by the panel, the trial judge should have communicated thisinformation at the appropriate time, namely, in the instructions regarding the first charge.

Moreover, the link to the relevant evidenceshould also have been made at that time. [109] What impact could neglecting to address this obligation have had on the instructions given? [110] First, we will consider the evidence presented that describes the role of the chain of command with regard to members in suicidaldistress.

(1) The evidence [111] During her testimony, the appellant addressed the issue of the role of the chain of command with regard to members in distress asfollows: [translation] Q. With regard to protocol in your unit, for calls or individuals in need of assistance or in distress, do you have an approachprotocol? In general, how do you approach these cases? A. Well, each time it happens it’s a little different, but we do haveguidelines, if you will, that allow us to direct the actions that are taken.

Sometimes, it—it—well, normally we are informedby the inferior or subordinate chain of command, so we are told that someone made suicidal statements. In almost everycase, the chain of command is informed. It is an essential need in terms of information for the commanding officer. Then alist is made in terms of the unit and when it happens, well, everyone is informed, but the important thing is that the person ismet with as soon as possible by either the padre or the Valcartier Health Centre, depending on where it happens, when ithappens, and so on.

In a case where it happens during down time or the Valcartier Health Centre is not open, well then—it isthe civilian hospital we will refer the person to, and normally the person is escorted by a member, normally someone prettyclose to him or her, a co-worker, so that it does not become a situation of authority necessarily, but instead it is a peer that isoffering assistance to seek out the truly professional help that is needed. Q. So I imagine this type of incident is not uncommon? A. No. It happens fairly, unfortunately, fairly frequently.

I couldn’t—I wouldn’t be able to tell you the number of times in a week or in a year it happens, but it’s something that almost everymember of the chain of command has experienced and has had to deal with. Q. So, you are aware of this type of problem? A. Absolutely. Every year there are training sessions on suicide awareness,

and a number, a certain number or certain ratio of people in the chain of command and in the unit in general have to takespecific training on suicide prevention and intervention. So, yes, it is something that is pretty well known. (A.B., Vol. II, at pages 370-371) [112] Major Sylvain also addressed this issue during his testimony. He stated that these difficult situations are handled by the chain ofcommand and that the military police are almost never involved: [translation] Q.

Now, in terms of the chain of command’s intervention with the person in need, you said that you spent many years—youhave spent many years in the Forces, you will agree with me that this type of intervention, unfortunately, for the chain ofcommand, is frequent? A. That’s right, it happens regularly, but it’s frequent, it’s not out of the ordinary at all. The chain ofcommand manages this type of incident very well.

In addition, maybe personally, I had just returned from a deployment inAfghanistan where I was adjutant in the battle group, I was the human resources manager of 1,500 people in combat, peoplewho made potentially suicidal comments, it was common. We always managed it through the chain of command with theappropriate tools, and it went very, very well. It’s not something that’s exciting or worrisome for the chain of command, it ishandled professionally, the interventions are done appropriately, and things are resolved very, very well. Q.

If I understand you correctly, in the vast majority of cases, the military police are not even involved in these situations?A. That’s right. In my experience as adjutant and after in the service, the military police are almost never involved in thistype of incident. [Emphasis added] (A.B., Vol. II, at pages 289-290)

(2) Parties’ positions (

i) The appellant [113] The appellant submits that the military judge should have instructed the panel about its duty to promote the welfare of hersubordinate. (ii) The respondent [114] The respondent raises three grounds in support of her position that the military judge did not need to specifically instruct the panelon the appellant’s duty. [115] First, the fact a duty is being carried out is not a defence to the offence of obstructing a police officer. Second, the appellant didnot mention this aspect during the trial, and at any rate, it was the deputy commanding officer who had handled the situation. Third, themilitary judge read out paragraph 4.02(1)(

c) of the Queen’s Regulations and Orders (QR&

O) during his instructions with regard to thecharge of conduct to the prejudice of good order and discipline.

(3) Analysis [116] There are many reasons that would explain why it was necessary for the instructions to the panel to include a discussion about thecompeting obligation of the chain of command to locate a member in distress. [117] First, the appellant’s and Major Sylvain’s testimony described the intervention role of the chain of command when a memberexperiences suicidal thoughts. [118] Second, the military police officer, during the events and in his testimony at the trial, defended the unique and exclusive role ofthe military police to locate a suicidal member and the existence of unlimited power to carry out this role. [119] Third, all officers and non-commissioned members have a duty to promote the welfare, efficiency and good discipline of allsubordinates (subparagraph 4.02(1)(

c) and subparagraph 5.01(

c) of the QR&O). [120] Fourth, the civil obligation of the Canadian Forces to ensure the health and safety of its members includes the duty of the chain ofcommand to locate a member in suicidal distress: see paragraph 3(

a) and sections 10 and 36 of the Crown Liability and Proceedings Act,R.S.C. 1985, c. C-50; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, at para. 36; art. 2087 C.C.Q.; Durette v. Grenier,2012 QCCA 1207. [121] In my opinion, the objections presented by the respondent are unfounded. [122] Clearly, the performance of the chain of command’s obligation to locate a member in distress does not justify committing thecriminal offence of obstructing a military police officer.

This duty must be carried out without impeding the work of a military policeofficer, if this police officer is acting in the execution of his or her duty. [123] Moreover, contrary to the position presented by the respondent, the personal involvement of the appellant is not required toconclude that the military judge should have explained to the panel that it was her responsibility to ensure the welfare of the member indistress. The fact the appellant was supervising the efforts to locate the member in distress must be taken into consideration.

This issufficient. [124] Additionally, the fact the military judge addressed the appellant’s obligation in his instructions regarding the charge of conduct to

the prejudice of good order and discipline seems clearly insufficient to me, because due to the complexity and density of the instructionsas given to the panel, I am far from satisfied that the panel was clear about the relevance of this duty when assessing the appellant’s guiltwith regard to the charge of obstruction. [125] In my opinion, if the military judge had addressed this competing obligation in his instructions with regard to the charge ofobstruction, the instructions would have been different, which would have affected the way the panel would have analyzed the twoessential elements of the offence with which the appellant was charged: (1) whether the police officer was performing his duties; and (2)whether the appellant voluntarily obstructed the work of police officer Plourde. [126] I will restate that the prosecution had to prove beyond a reasonable doubt that Corporal Plourde was in the course of performinghis duties.

Although the appellant admitted that he was intervening in the performance of his common law duty in response to a 911 call,she submitted that the force used was not reasonably necessary, and in doing so, he was no longer acting in the execution of his duty. [127] Indeed, as we know, a police officer cannot be considered to be performing his duties if he or she does not respect the legalframework surrounding those duties: Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2, at pages 28-29; R. v. Mann,[2004] 3 S.C.R. 59, 2004 SCC 52, at para. 35; R. v. DeLong, (1989), (ON CA), 47 C.C.C. (3d) 402 (C.A.

Ont.), atpages 410-411; R. v. Stevens (1976), (NS CA), 33 C.C.C. (2d) 429 (C.A.

N.S.), at pages 434-5. [128] To counter the argument presented by the appellant, the prosecution therefore had to prove beyond a reasonable doubt that theforce Corporal Plourde used was reasonably necessary. [129] Accordingly, if the panel had been informed of the appellant’s competing duty to locate the member in distress, it could haveconsidered that because of this obligation and the fact that, according to the appellant’s testimony, the military police had been informedof the actions taken to locate the member, the force used by Corporal Plourde exceeded what is reasonable and necessary in the exerciseof his common law powers. [130] Neglecting to address this obligation constitutes an error of law. [131] To explain how neglecting to address this obligation may have influenced the verdict, I propose a review of the relevant issues inthe following order: (1) the essential elements of the offence of obstructing the work of a police officer performing his duties; (2) thegeneral principles that apply to the judge’s duties when giving the jury instructions; (3) the obligation of the chain of command and theappellant to locate the member in distress and the consequences of neglecting to address this in the instructions to the panel. (

i) Obstructing a police officer (s. 129 of the Criminal Code) [132] I now turn to the

interpretation of

section 129 of the Criminal Code. [133]

Section 129 of the Criminal Code reads as follows: "Offences relating to public or peaceofficer " " " "129 Every one who " " " "

a) resists or wilfully obstructs a publicofficer or peace officer in the execution of hisduty or any person lawfully acting in aid ofsuch an officer, " " " "… " "Infractions relatives aux agents de la paix" " " "129"" Quiconque, selon le cas : " " " "(

a) volontairement entrave un fonctionnairepublic ou un agent de la paix dansl’exécution de ses fonctions ou toutepersonne prêtant légalement main-forte à untel fonctionnaire ou agent, ou lui résiste enpareil cas; " " " " […]"" " " " [134] The authorities recognize the challenges posed by the

interpretation of the offence set out in

section 129 Cr. C. [135] The analysis of the challenges in interpreting

section 129 strikes me as being essential, as on the one hand, it brings to light thegrey areas surrounding the application of this provision, and on the other hand, it reveals how much care must be taken in defining theessential elements of

section 129, particularly when they need to be explained to a jury. [136] Even though the law "“presumes the collective wisdom and intelligence of the jurors[,] . . . the law makes no assumption as totheir knowledge of the legal principles they are bound ""to apply”" (R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 139 (JusticeFish, dissenting)), as they are new to the exercise: R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 39. [137] In R. v.

Gunn (1997), 1997 ABCA 35 , 113 C.C.C. (3d) 174, leave to appeal refused [1997] 2 S.C.R. x, a decision citedby the prosecution in its memorandum, the Alberta Court of Appeal described the difficulties in interpreting this provision in thefollowing terms:

18 There is not, and likely cannot be, a precise legal definition of “obstructs” as the word is used in s. 129(a). That reality isboth a strength and a weakness of the section. Furthermore, any

interpretation of “obstructs” must respect the fact that thereis in this country, a right to question a police officer. The cases demonstrate that courts have had difficulties measuring theinteraction between individuals and peace officers and drawing the line between innocent and culpable conduct. [138] In his

article entitled, "“Obstructing a Peace Officer: Finding Fault in the Supreme Court of Canada”", (2000) 27 Man. L.J. 273, atp. 291, author Larry Wilson makes the following observation regarding the mens rea of

section 129: "“[s]uffice it to suggest that at thispoint in time, lacking a definitive statement from the Supreme Court of Canada, the fault element for the offence of resisting, wilfulobstruction and failing to assist remains a mystery”". [139] In the fifth edition of their work Criminal Law, authors Manning and Sankoff note that charges brought under

section 129 Cr. C.require that the rights of citizens be carefully reconciled with the powers of the police in the execution of their duties: ¶16.54 . . . Still, although sections 129 and 270 apply to a wide range of public employees, charges under this

section aremost often brought in relation to conduct concerning the police, as they are the officers most likely to be involved in directclashes with members of the public. The difficulty in resolving these charges is to reconcile the right of citizens to resistinterference with their liberty and property, and the duty of the police to preserve peace and enforce the law. Although allpeople have the right to be left alone generally, certain powers are conferred upon the police in connection with theexecution of the duties imposed upon them that authorize exceptions to this right.

However, where such interference extendsbeyond the legitimate ambit of police authority, whether because there is a purported exercise of a non-existent power orbecause there is an exercise of powers for an improper purpose or to an extent not authorized by statute, then the citizen isentitled to resist, by force if necessary. In these circumstances, there is no liability for assault unless excessive force is used,and similarly the person cannot be prosecuted under

section 129(

a) for resistance or obstruction. Technically, such a result isreached by holding that a police officer’s unauthorized action puts them outside the execution of their duty.

As Laskin C.J.C.noted in Biron, an acquittal is justified by the overriding “social and legal, and political, principle upon which our criminallaw is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the lawprovides otherwise”. [Emphasis added.] Morris Manning and Peter Sankoff, Manning, Mewett & Sankoff, Criminal Law, 5th ed. (Markham, Ontario: LexisNexis, 2015), pp. 758and 759. [140] In this case, the military judge instructed the panel that the appellant was under no legal obligation to assist Corporal Plourde(A.B., Vol.

III, at pages 501-502). [141] Moreover, in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Justice Iacobbuci wrote the following regarding the lack ofcorrelation between police powers and police duties in the context of the power to detain: 35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigatecrime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests arefundamental to the Canadian constitutional order.

Consequently, any intrusion upon them must not be taken lightly and, as aresult, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch,nor can it become a de facto arrest. [Emphasis added.] [142] I will return to this point when I review the instructions given by the military judge. [143] In considering the

interpretation of

section 129, it should first be noted that the use of the word "“wilfully”" indicates that the faultmust be subjective: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 49. [144] In R. v. Docherty, (SCC), [1989] 2 S.C.R 941, Wilson J. notes that the use of the word "“wilfully”" in

section 666Cr. C., as it then read, denotes the requirement of a high level of mens rea, stressing intention in relation to the achievement of a purpose: Section 666(1) is clearly framed so as to require guilty knowledge in order to constitute a breach. The

section prohibits anaccused from wilfully failing or refusing to comply with a probation order. The word “wilfully” is perhaps the archetypalword to denote a mens rea requirement. It stresses intention in relation to the achievement of a purpose. It can be contrastedwith lesser forms of guilty knowledge such as “negligently” or even “recklessly”.

In short, the use of the word “wilfully”denotes a legislative concern for a relatively high level of mens rea requiring those subject to the probation order to haveformed the intent to breach its terms and to have had that purpose in mind while doing so. [Emphasis added; emphasis of Justice Wilson on the words “wilfully” and “refusing” in the original.] [145] Moreover, in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, the Supreme Court was called on to define the mens rea requiredfor the offence of obstructing justice under

section 139 of the Code, which requires the prosecution to prove beyond a reasonable doubtthat the accused intended to act in a way tending to obstruct, pervert or defeat the course of justice. On this point, Justice Charron wrotethe following: 52 Second, it must be determined whether the offence of obstructing justice, the parameters of which are well established,has been committed. To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstructthe course of justice (R. v. May (1984), (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), per Martin J.; seealso R. v.

Hearn (1989), (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), per Goodridge C.J.N., aff’d (SCC), [1989] 2 S.C.R. 1180). With respect to mens rea, it is not in dispute that this is a specific intent offence

(R. v. Charbonneau (1992), (QC CA), 13 C.R. (4th) 191 (Que. C.A.)). The prosecution must provebeyond a reasonable doubt that the accused did in fact intend to act in a way tending to obstruct, pervert or defeat the courseof justice. A simple error of judgment will not be enough. An accused who acted in good faith, but whose conduct cannot becharacterized as a legitimate exercise of the discretion, has not committed the criminal offence of obstructing justice. [146] While Justice Charron’s comments dealt with

section 139 rather than

section 129, the essential elements of the two offences aresufficiently similar to persuade me to adopt the

interpretation of Chief Justice Richards of the Court of Appeal for Saskatchewan in R. v.Alsager, 2016 SKCA 91, in which he wrote: 52 Nonetheless, in order to give effect to the language of s. 129(a), and Parliament's apparent intention in enacting it, it isnot necessary to restrict the scope of the provision to situations where an offender has a conscious purpose to obstruct apeace officer. As pointed out by Martin J.A. in Buzzanga at paras 40-46, if a person who foresees that a consequence iscertain or substantially certain to result from

an act, the person can be taken to have intended the consequence even if the actis done to achieve some different purpose: see also Morris Manning, Q.C., and Peter Sankoff, Manning, Mewett & Sankoff:Criminal Law, 4th ed (Markham: LexisNexis Canada Inc, 2009) at 164. 53 All of this leads me to conclude that the mens rea aspect of s. 129(

a) requires the Crown to prove beyond a reasonabledoubt that (

a) the accused knew the individual obstructed was a peace officer or other person listed in s. 129(a), (

b) theaccused knew the individual obstructed was in the execution of his or her duty, and (

c) the accused either had an intention toobstruct the peace officer or foresaw with certainty or substantial certainty that doing the act in question would obstruct thepeace office. [147] In this case, the prosecution had to prove the following essential elements beyond a reasonable doubt: (1) the appellant obstructedCorporal Plourde; (2) she knew that Corporal Plourde was a police officer; (3) he was in the execution of his duty; (4) she knew that hewas in the execution of his duty; and (5) she intended to obstruct Corporal Plourde in the execution of his duty or foresaw with certaintyor substantial certainty that her act would obstruct him: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto:Carswell, 2015) at p. 564. [148] In my view, Beaudry provides clarification with respect to two critical points: a simple error of judgment will not be enough for aconviction, and the good faith of the accused must be evaluated. [149] The appellant cannot be convicted of obstructing justice if she acted in good faith and her conduct constituted a simple error injudgment rather than an intention to obstruct the military police officer. (ii) Jury instructions: general principles [150] In a criminal trial by jury, such as this one held before a panel of the General Court Martial, the trial judge is required to determineand to state the law, and to regulate and order the proceedings in accordance with the law: R. v.

Daley, 2007 SCC 53, [2007] 3 S.C.R.523, at para. 27. [151] The final charge to the jury must at minimum cover the following eight elements, namely, (1) instruction on the relevant legalissues, including the charges faced by the accused; (2) an explanation of the theories of each side; (3) a review of the salient facts whichsupport the theories and case of each side; (4) a review of the evidence relating to the law; (5) a direction informing the jury they are themasters of the facts and it is for them to make the factual determinations; (6) instruction about the burden of proof and presumption ofinnocence; (7) the possible verdicts open to the jury; and (8) the requirements of unanimity for reaching a verdict: R. v.

Daley, 2007 SCC53, [2007] 3 S.C.R. 523, at para. 29. [152] The connection between the evidence presented and the issues to be decided is a crucial element of the judge’s charge to the jury. [153] The trial judge is not required to provide an exhaustive review of the evidence. In some cases, this may serve to confuse the juryas to the central issue. Brevity in the jury charge is desired. The extent to which the evidence is reviewed will depend on each particularcase. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence.

So long as the evidence is putto the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate. The duty ofthe trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language:R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-57. [154] R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431 (Ont. C.A.), includes a full and useful

summary of the trial judge’s obligationswith respect to relating the evidence adduced at trial to an issue (see also R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469 (Ont.

C.A.),at paras. 53-58, leave to appeal refused [2014] 1 S.C.R. ix). [155] Watt J.A. wrote the following: 140 It is beyond controversy that among the obligations imposed upon a trial judge in instructing a jury in a criminal case,except in cases where it would be needless to do so, is the duty to review the substantial parts of the evidence and to give thejury the position of the defence, so that the jury may appreciate the value and effect of the evidence, and how the law is tobe applied to the facts as the jury finds them to be: Azoulay v.

R., (SCC), [1952] 2 S.C.R. 495 (S.C.C.), at pp.497-498. 141 Frequently, a judge satisfies this obligation to review substantial parts of the evidence and to relate that evidence to theissues the jury must decide by reviewing the evidence contemporaneously with legal instructions about what the Crownmust prove to establish each essential element of the offence and any defence, justification, or excuse that may be applicableto that element: R. v. MacKinnon (1999), (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 29; R. v.Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86 (Ont. C.A.), at paras. 172-173.

When this approach is followed, the jury

understands, to put it in the vernacular, “what goes with what”. In other words, the instructions couple what must be proven(an essential element of an offence) with what is relevant to prove (or raise a reasonable doubt about) it (the evidence):Cudjoe, at para. 175. 142 The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by thejury imposes no duty upon the trial judge to review all the evidence: Azoulay, at p. 498; R. v. Daley, 2007 SCC 53, [2007] 3S.C.R. 523 (S.C.C.), at paras. 55-56.

The role of the trial judge is to decant and simplify, not to regurgitate and complicate:R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 (S.C.C.), at para. 13; Daley, at para. 56. A trial judge is vestedwith a considerable discretion in determining the extent to which the evidence adduced at trial is reviewed for the jury infinal instructions: R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423 (S.C.C.), at para. 3.

In the end, the test is one of fairness.Provided the critical features of the evidence are put to the jury in a way that will permit the jury to truly appreciate theissues and the defence presented, a trial judge will have met the standard required: Daley, at para. 57. 143 A charge to the jury in a criminal case does not take place in isolation. It occurs in the context of the trial as a whole.Appellate review of a trial judge's charge encompasses the addresses of counsel, as the addresses may fill some gaps in thecharge: Daley, at para. 58; Royz, at para. 3.

That said, the addresses of counsel are not and cannot be a proxy for the trialjudge's obligations under Azoulay and its progeny. 144 Jury instructions are tested against their ability to fulfill the purposes for which they are given, not by reference towhether any particular approach or formula has been used.

Provided the jury is left with a sufficient understanding of theevidence as it relates to the relevant issues and the positions of the parties on those issues, the charge passes muster:Jacquard, at para. 14. 145 Serial reviews of the evidence adduced at trial are not likely to be of assistance to jurors: R. v. MacKay, 2005 SCC 75,[2005] 3 S.C.R. 607 (S.C.C.), at para. 2; R. v. Charles, 2011 ONCA 228, 270 C.C.C. (3d) 308 (Ont. C.A.), at para. 19. [Emphasis added.] [156] Normally, the judge must relate the relevant evidence to the essential element to which it applies. [157] In R. v.

Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, Justice Watt describes as follows the requirement to link the review of therelevant evidence to the issue or essential element in question: 173 The more difficult task for trial judges in connection with evidentiary references is the relation of those references tothe issues in the case. Review and relate.

Relating the evidence to the issues requires the trial judge to apprise the jurors ofthe essential features of the evidence that they may apply in resolving the issues that are theirs to decide and that will leadthem, ultimately, to their verdict. . . . 175 The Ontario Specimen Jury Instructions (Criminal), and other model and pattern instructions that have duplicated theirmethodology, adopt a systematic approach to jury instructions.

A crucial constituent of this scheme, reflected in item iv,above, involves linking the critical features of the evidence to the issue or essential element to which the evidence relates.Said somewhat differently, what must be proven (the essential element) is mated with what is offered to prove it (theevidence). 176 To determine whether an essential element of an offence has been proven beyond a reasonable doubt requires a jury tomake findings of fact. These findings of fact are made on the basis of evidence adduced at trial: testimony, exhibits andadmissions, together with inferences drawn from that evidence.

For each finding of fact some, but usually not all of theevidence adduced at trial will be relevant. The trial judge’s task is to review the essentials of that evidence and to relate it tothe issue to which it is relevant.

A legal instruction combined with a contemporaneous review of the evidence on the issueseems more likely to assist the jurors in their decision-making than an instruction that segregates what must be proven fromwhat is used to prove it. 177 The practice of combining legal instruction and focused evidentiary review into an integrated whole, the method forwhich the Ontario Specimen Jury Instructions (Criminal) provides, ensures what a separate review of the evidence does notachieve in most cases: an issue specific relation of the evidence.

Further, such a procedure is more apt to reduce the volumeof evidence references, confining them to the essentials, eliminating the peripheral and concentrating more on quality thanquantity. [Emphasis added.] [158] However, even though the review of the relevant evidence must usually be provided when the judge is addressing an essentialelement of the offence, the failure to do so at that precise moment will not necessarily be fatal if the jurors can nevertheless properlyappreciate the relevance of the evidence in relation to the issue: R. v. Cudjoe 2009 ONCA 543; 68 C.R. (6th) 86 (Ont.

C.A.), at para. 169. [159] Finally, the charge to the jury sometimes needs to include certain warnings because of the appreciation of the evidence by the trialjudge and his or her accumulated judicial experience. In R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 39, JusticeArbour made the following remarks on this subject: 39 . . . Judicial appreciation of the evidence is governed by rules that dictate the required content of the charge to the jury.

These rules are sometimes expressed in terms of warnings, mandatory or discretionary sets of instructions by which a trialjudge will convey the product of accumulated judicial experience to the jury, who, by definition, is new to the exercise. Forinstance, a judge may need to warn the jury about the frailties of eye-witness identification evidence. Similarly, years of

judicial experience has revealed the possible need for special caution in evaluating the evidence of certain witnesses, such asaccomplices, who may, to the uninitiated, seem particularly knowledgeable and therefore credible. Finally, judicialwarnings may be required when the jury has heard about the criminal record of the accused, or about similar fact evidence.

But these rules of caution cannot be exhaustive, they cannot capture every situation, and cannot be formulated in every caseas a requirement of the charge. [Emphasis added.] [160] In this case, certain specific warnings were required regarding the distinction between the moral obligation to assist the police andthe legal obligation to do so, the police officer’s error of law, and an instruction regarding the evaluation of the appellant’s conduct andthat of the police officer. (iii) The chain of command’s obligation to locate the member in distress and the instructions regarding the execution of the policeofficer’s duty [161] I note that the appellant admitted that Corporal Plourde, a military police officer, was initially acting in the execution of his dutywhen he intervened following a 911 call (A.B., Vol.

III, at page 418). This admission rendered several elements of the military judge’sinstructions superfluous (A.B., Vol. III, from page 508, line 17, to page 511, line 33).

The military judge should have instructed thepanel to consider that the police officer was in the execution of his duty in the course of an intervention following the call, but that thequestion it needed to answer was whether his conduct was reasonable and necessary in the circumstances. [162] As the military judge correctly noted from the outset, the issue is the scope of the execution of the duty to locate the member indistress, an issue that must be decided on the basis of the circumstances of each case. [163] Before reading the relevant sections of the Code, he told the panel the following: [translation] But it is wrong for a peace officer, whether civil or military, to use force without legal authorization to do so.

In so doing, herisks not only overstepping his duties, but also losing what protection he has as a person charged with enforcing the law.Therefore, a peace officer may use reasonably necessary force when required or authorized to do anything in theadministration or enforcement of the law, but the Criminal Code states that he is criminally responsible for any excess forceemployed. Many sections of the Criminal Code deal with the responsibilities and authorities of peace officers, as well as thescope of the legal protection granted to them or the justification of their acts.

Earlier I mentioned sections 25 and 27, and toldyou I would talk more about them later; now the time has come. For the purposes of this case, it will be

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