Courts Martial

COURT MARTIAL

 

Citation: R v Pear, 2015 CM 3019

 

Date:  20150409

Docket:  201366

 

Standing Court Martial

 

Asticou Courtroom

Gatineau, Quebec, Canada

 

Between: 

 

Her Majesty the Queen, Respondent

 

- and -

 

Warrant Officer W.L. Pear, Applicant

 

 

Before:  Lieutenant-Colonel L.-V. d'Auteuil, M.J.

 

 

DECISION ON A QUESTION OF MIXED LAW AND FACT FOR A STAY OF PROCEEDINGS PURSUANT TO SUBSECTION 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS CONCERNING A VIOLATION OF SECTION 7 OF THAT SAME CHARTER

 

(Orally)

 

[1]               This is an application for determining a question of mixed law and fact made by Warrant Officer Pear, the accused in this trial, brought pursuant to subparagraph 112.05(5)(e) of the Queen's Regulations and Orders for the Canadian Forces (QR&O). It is presented at the beginning of the trial, prior to the judge asking the accused to enter a plea on the three charges on the charge sheet.

 

[2]               Warrant Officer Pear is charged with one service offence punishable pursuant to section 97 of the National Defence Act (NDA) for drunkenness while at a mess dinner on Canadian Forces Base Petawawa on or about 1 November 2012, and with two service offences punishable under section 85 of the NDA for having used insulting language to a superior officer at the same mess dinner.

 

[3]               Warrant Officer Pear seeks an order from this court to stay the proceedings on the three charges before this court under section 24(1) of the Canadian Charter of Rights and Freedoms for an alleged violation by the prosecution of its obligation to disclose under section 7 of the Charter. He claims that considering the loss of significant documents due to the negligence of the prosecution, his right to make full answer and defence has been irreparably impaired and violated to the extent that the only remedy that must considered by this Court is to stay the proceedings.

 

[4]               As a matter of evidence, were introduced by the applicant the notice of application, an affidavit from an employee of Michel Drapeau Law Office, Mrs. Nicole Bélanger-Drapeau, and two affidavits from Mrs. Leeann Jamieson, Administrative Assistant of the Prosecutor. No witnesses were heard and no further evidence was adduced by both parties.

 

[5]               On or about 1 November 2012, it is alleged that Warrant Officer Pear, who was a member at that time of the 2 Service Battalion, Canadian Armed Forces, Regular Force, was drunk and used insulting language toward two persons of the rank of lieutenant during a mess dinner that took place at Reichwald Warrant Officers' and Sergeants' Mess on Canadian Forces Base Petawawa, province of Ontario.

 

[6]               A complaint was made on 2 November 2012 regarding the alleged inappropriate conduct of Warrant Officer Pear. Charges against Warrant Officer Pear were laid on 22 March 2013. Further to the choice made on 19 April 2013 by Warrant Officer Pear to be tried by a court martial, his commanding officer made an application to the Referral Authority for disposal of the charges.

 

[7]               The charges were referred by the commanding officer of the unit on 26 April 2013. The Referral Authority disposed of those charges on 26 July 2013 and recommended to the Director of Military Prosecutions that the matter proceed by the way of court martial. On 2 August 2013, the Director of Military Prosecutions preferred the three charges against the accused. Initial disclosure to defence counsel on this mater was made by the prosecution on 22 August 2013. The prosecution provided to the accused what it considered being all disclosable material in its possession or control on that date.

 

[8]               On 6 September 2013, the applicant was released from the Canadian Armed Forces.

 

[9]               On 12 December 2013, the prosecution notified defence counsel about the witnesses whom it proposed to call, including the purpose and the nature of their evidence.

 

[10]           On 3 January 2014, disclosure issues were raised by defence counsel, which were identified in a letter on that date. Among other things, defence counsel, acknowledging that he had received disclosure of select photos taken at the mess dinner his client had attended, requested a copy of all photos taken at that event.

 

[11]           On 28 January 2014, the legal administrative assistant to the prosecutor made a request to an officer of the accused's former unit concerning the pictures.

 

[12]           On 30 January 2014, the prosecution sent to the defence counsel a CD-ROM with all available pictures.

 

[13]           Defence counsel replied by email on 7 February 2014 that according to him, 84 pictures were still missing and requested them to be sent to him as a matter of disclosure.

 

[14]           The prosecutor's administrative assistant then provided by email to the defence counsel, email statements made by the photographer who took the pictures, as well as from a person from the former unit of the accused, providing an explanation about the missing photos claimed by the accused.

 

[15]           Through those statements and the one made earlier by the person tasked to conduct the Unit Disciplinary Investigation concerning this matter, it was learned that:

 

(a)                An official photographer was tasked to take pictures at the mess dinner that took place on 1 November 2012;

 

(b)               The photographer deleted about three photos that were not focussed properly;

 

(c)                The photographer downloaded all pictures, taken from that event, onto the unit "N" drive, as is normally the case for any of the unit's activities, and cleared the memory on the camera. As normal practice, a link to the photos' location was sent out to the unit members;

 

(d)               All unit members had access to those photos, which would include the ability for them to modify and delete them as they wanted;

 

(e)                A person from the unit, who is not a police officer, was tasked on the following morning of the alleged incident to conduct a Unit Disciplinary Investigation concerning the matter involving Warrant Officer Pear;

 

(f)                 Further to his return from leave on 12 November 2012, this person obtained five of those pictures in order to indicate proximity between Warrant Officer Pear and the officers involved in the alleged incident, as well as to prove that Warrant Officer Pear was seen with alcoholic beverages. Also, illustration of the seating arrangement during the mess dinner, including where witnesses and the suspect were located, was information provided through those pictures; and

 

(g)                According to the Captain Adjutant's statement, 64 pictures (number 1 to 26 and 37 to 69) identified by defence counsel as missing, seem to not correspond to the event. For the remaining pictures identified by defence counsel as missing, from 25 February 2014 to today, they are not available on the drive nor with the photographer and were deleted because they did not turn out. It was also confirmed that no other copy of these photos are contained or held at that unit.

 

[16]           Considering this disclosure issue with the pictures, defence counsel was not still ready to set a trial date. An application was then made to a military judge by the prosecution at the end of May 2014 for the setting of a trial date, resulting in an order by me, as the presiding military judge assigned by the Chief Military Judge to preside at this court martial, setting a date for this court to be convened on 13 April 2015. A General Court Martial was then, accordingly, convened by the Court Martial Administrator on 5 November 2014.

 

[17]            On 10 November 2014, I held a pre-trial conference with counsel. Further to some discussions that took place during that conference call, counsel presented a joint application for setting an earlier date for the trial in order to allow the court martial to hear preliminary matters sooner.

 

[18]           On 13 November 2014, I ordered a new trial date accordingly and, on 22 January 2015, the Court Martial Administrator issued a new convening order for the Standing Court Martial of Warrant Officer Pear to take place on 26 January 2015 in Petawawa.

 

[19]           However, with the agreement of both counsel, I ordered that, for preliminary matters only, this court martial shall be held on that date, but at the Asticou courtroom in Gatineau. On 26 January 2015, I then proceeded with the hearing of those applications, including the present one.

 

[20]           The right to disclosure is not an end in itself. Its purpose is to help ensure a defendant's right to fundamental justice with its dual issues of reliability of the result and fairness. Applications relating to disclosure involve a multi-faceted process with three main stages:

 

(a)                whether there was a breach of disclosure; if so,

 

(b)               whether there was a breach of full answer and defence, and

 

(c)                appropriate remedy, if a breach either.

 

[21]           It is well settled law that the prosecution has a legal duty to disclose all relevant information to the defence, not merely the material that the prosecution intends to use as part of its case. The fruits of the investigation that are in its possession are not the property of the prosecution to secure a conviction, but the property of the public to ensure that justice is done.

 

[22]           Since the Supreme Court of Canada decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, the obligation of the prosecution to disclose all relevant information in its possession, whether inculpatory or exculpatory, whether it intends to rely on it or not, has been well established.

 

[23]           The prosecution is, however, granted some discretion related to relevance and privilege. In that context, there is no obligation on the prosecution to disclose or produce documentation it doesn't have. This is an ongoing obligation imposed on the prosecution, and it must disclose any new information or material to the defence as soon as it comes into its possession or control. The right of the accused to disclosure of information exists whenever there's a reasonable possibility of the information being useful to the accused in making full answer and defence. This right is protected under section 7 of the Charter and helps to guarantee the accused's ability to exercise the right to make full answer and defence as this was recognized at paragraph 37 of the decision by the Supreme Court of Canada in R. v. Carosella, [1997] 1 S.C.R. 80.

 

[24]           Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to subsection 24(1) of the Charter.

 

[25]           It is trite law that the purpose of prosecuting offences is not to secure a conviction at all costs. It is to lay, before a court, what the prosecution considers to be credible and relevant evidence that would establish the commission of an alleged offence. The prosecution has the duty to present all available evidence firmly, thoroughly but fairly. The prosecution does not win; the prosecution does not lose.

 

[26]           The connections between the duty to disclose and the duties of the prosecutor were expressed by Justice Claire L'Heureux-Dubé, as she then was, in R. v. O'Connor [1995] 4 S.C.R. 411, at paragraph 101, she states:

 

Though the obligation on the Crown to disclose has found renewed vigour since the advent of the Charter, in particular s. 7, this obligation is not contingent upon there first being established any violation of the Charter. Rather, full and fair disclosure is a fundamental aspect of the Crown's duty to serve the court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served: Stinchcombe, supra, at p. 333.

 

[27]           The prosecution bears the burden to also make reasonable inquiries of other organizations that could reasonably be in possession of evidence regarding the case, or pertaining to the credibility or reliability of witnesses, as mentioned at paragraph 49 and 50 by the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3.

 

[28]           As expressed at paragraph 21 of the Supreme Court of Canada decision in R. v. Dixon, [1998] 1 S.C.R. 244, the defendant must demonstrate a reasonable possibility that the undisclosed information could be, or could have been, used in meeting the case for the prosecution, advancing a defence or otherwise making a decision which could affect the conduct of the defence.

 

[29]           However, if evidence has been intentionally destroyed to prevent its being ordered to be produced, a less stringent test applies. The test is whether the improper lack of disclosure or production may have affected the conduct of the defence. If the material meets the threshold test for disclosure or production, a breach of section 7 of the Charter has been established without the need to show prejudice. A meeting of the threshold for disclosure plus blameworthiness equals a breach of section 7 of the Charter, with prejudice going to the remedy.

 

[30]           Essentially, as established in the decision of the Supreme Court of Canada in R. v. La, [1997] 2 S.C.R. 680, at paragraphs 16 to 22, if evidence has been lost because of prosecution's actions, then it puts on it the burden to provide an explanation for such situation, and if the trial judge is satisfied, then he may conclude that the duty to disclose has not been breached.

 

[31]           The prosecution, here, took the position that the unit who had the pictures on its drive is a third party to the matter. It raised the fact that the pictures at the mess dinner were taken in a social context and are not the fruits of the investigation. It claimed that it fulfilled its duty to inquire as soon as being warned by the defence counsel of some pictures missing. The prosecution affirmed that the applicant failed to demonstrate any prejudice to his right to make full answer and defence and if the court concludes to a Charter breach, then it is not the clearest of cases that would warrant a stay of proceedings as the appropriate remedy. It suggested that the court should hear all the evidence of this case before making any conclusion on that issue.

 

[32]           The defence counsel claimed that the photographs obtained through the prosecution may have been doctored or modified and those which are missing were probably deleted by any person from the unit. The prosecution was negligent in its duty to preserve this relevant evidence. The failure to safeguard evidence by the prosecution would have then caused tremendous prejudice to the accused's right to a fair trial and cannot be remedied. The only remedy in the circumstances, considering the violation of Warrant Officer Pear's Charter-protected rights as guaranteed under section 7, would be a stay of the actual proceedings, on all charges.

 

[33]           The facts revealed that the pictures taken on 1 November 2012 were for a social event. They were put on a common drive to make them accessible to all unit members who were made aware of their existence through an email with a link.

 

[34]           Master Warrant Officer Taylor was tasked to conduct a Unit Disciplinary Investigation on the incident involving Warrant Officer Pear. As indicated at articles 106.02 and 106.03 of the QR&O, his role was to reconstruct the event, gather evidence, identifying elements of the alleged offence and identifying those responsible. In doing so, he had to collect all reasonably available evidence bearing on the guilt or innocence of the person who is the subject of the investigation.

 

[35]           He clearly learned about the existence of the pictures and took some for the purpose of indicating the proximity of officers who were involved in the incident, the seating arrangement during the mess dinner and the fact that Warrant Officer Pear would have been seen with alcoholic beverages.

 

[36]           Master Warrant Officer Taylor is not a police officer and the investigation was not conducted by an investigator from the Military Police or the National Investigation Service. He took the pictures that he considered relevant to his investigation.

 

[37]           The matter was sent to the Director of Military Prosecutions at the end of July 2013 and charges were preferred at the beginning of August 2013. Initial disclosure was sent to defence counsel at the end of the month of August 2013.

 

[38]           Five pictures were disclosed through the unit investigation report to the Director of Military Prosecutions. The prosecution does not rely on those pictures to prove its case and do not consider them as essential because it is more of corroborative evidence than anything else. As illustrated by the prosecution's "will say" statement concerning witnesses to be called and sent to the defence counsel on 12 December 2013, the prosecutor relied mainly on viva voce evidence to support all essential elements of the charges.

 

[39]           It is at the beginning of January 2014, about five months after initial disclosure made by the prosecution, that the defence counsel raised, for the first time, through a request made to the prosecution, the issue of getting all photos taken at the mess dinner on 1 November 2012.

 

[40]           Up to that point, it appears that the prosecution was unaware of the existence of all those photos missing. It would have been difficult for the prosecution then to take any reasonable inquiry on that very issue. The unit investigation conducted at the unit was presumed to contain all reasonably available evidence bearing on the guilt or innocence of Warrant Officer Pear and there was no evidence adduced by the applicant that would lead the court to conclude to the contrary.

 

[41]           As a matter of fact, being made aware by the defence counsel of the possible existence of additional photos, the prosecution made all reasonable and necessary inquiries to find out about this specific issue, as demonstrated by the email sent by the prosecution's administrative assistant on 28 January 2014. It quickly learned that there were other photos, how, who and when they were taken and it got all those which were still existing. As soon as it received them, they were diligently disclosed to the defence counsel at the end January 2014.

 

[42]           Clearly, there is no evidence that the deletion of the 20 missing photos was done intentionally. In fact, there is no evidence when and who could have done that and for what purpose. The only thing known is that some photos that were taken on 1 November 2012 were probably deleted by someone, which could involve anybody, including, potentially, the accused, the person tasked for the investigation, any other member of the unit and the photographer himself.

 

[43]           It is the conclusion of the Court that those photos were not lost because of the prosecution's actions. To the contrary, once made aware of the situation, it took all necessary and reasonable steps to get them as soon as they learned about it. Not being aware of its existence before being told by the defence counsel, it is difficult to see how it failed to do so prior to that time.

 

[44]           Explanations provided by the prosecution about the circumstances that led to those photos being deleted is sufficient to satisfy the Court that it did not breach its duty to disclose.

 

[45]           In addition, I would say that the applicant failed to demonstrate a reasonable possibility that those pictures that were deleted could have been used in advancing a defence or otherwise making a decision which could have affected the conduct of the defence.

 

[46]           Essentially, the defence was still able to get an exact account of what, how, when and where all these alleged incidents happened and who was involved, through the testimony of all witnesses present at that event. The applicant has not demonstrated that he was unable to get any information on that night that could have been only provided through the existence of those pictures. The applicant also failed to identify clearly to the Court what defence could have been advanced or how the conduct of any defence he considered would have been affected.

 

FOR THESE REASONS, THE COURT:

 

[47]           CONCLUDES that the prosecution did not breach its duty to disclose all the photos taken by the photographer at the mess dinner on 1 November 2012; and

 

[48]           DISMISSES the application.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major A.-C. Samson and Captain M.L.P.P. Germain

 

Mr M. Drapeau and Mr J.M. Juneau, Michel Drapeau Law Office, 192 Somerset Street West, Ottawa, Ontario  K2P 0J4, Counsel for Warrant Officer W.L. Pear