Courts Martial

COURT MARTIAL

 

Citation: R. v. Liu, 2003 CM 020

 

Date: 20030116

Docket: F200302

 

Standing Court Martial

 

14 Wing Greenwood

Greenwood, Nova Scotia, Canada

 

Between:

 

Her Majesty The Queen

 

- and -

 

Corporal C.A.T. Liu, Accused

 

Before: Commander C.J. Price, M.J.

FINDING

(Orally)

 

[1]                    These are the reasons for the finding I have made in this matter. Corporal Liu is charged with three offences under the Code of Service Discipline: a breach of section 83 of the National Defence Act (NDA), disobedience of a lawful command; a breach of section 85 of the NDA, behaved with contempt towards a superior officer; and a breach of section 129 of the NDA, conduct to the prejudice of good order and discipline. The last two charges are alternate to each other.

 

[2]                    All three of these charges arose from an incident occurring on the 6th of February 2002, in the office of Major Côté, one of Corporal Liu's superiors, at Canadian Forces Base Greenwood here in Nova Scotia. The charges allege that Corporal Liu did not return to Major Côté's office, as ordered, on the day in question, and that in Major Côté's office, in the presence of that officer, and also in the presence of Chief Warrant Officer Brown and Master Warrant Officer Rerrie, Corporal Liu said words to the effect of, "This is bullshit" and "You fucking bastards are doing it to me again."

 

[3]                    I turn, first of all, to the issues of onus and standard of proof. In R. v. Lifchus, a 1997 decision of the Supreme Court of Canada reported at 3 S.C.R. 320, the Supreme Court of Canada stated, at paragraph 13, that:

 

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence.

 

Proof beyond a reasonable doubt, the court said:

 

[D]oes not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt.

 

and that quote is from paragraph 36 of that decision.

 

[4]                    If I conclude Corporal Liu is probably guilty, then he must be acquitted. In R. v. Starr, another Supreme Court of Canada decision reported at (2000) 2 S.C.R. 144, the court held that the burden of proof placed upon the Crown lies:

 

[M]uch closer to "absolute certainty" than to "a balance of probabilities"

 

and that is at paragraph 242 of that decision.

 

[5]                    In Lifchus, the Supreme Court of Canada considered the meaning of the words "beyond a reasonable doubt." The court stated that it can be derived from the evidence or absence of evidence. As I stated earlier, it is not enough to conclude that Corporal Liu is probably or likely guilty, such a conclusion demands that the accused be acquitted. The court must be, in the words of Lifchus, sure that the accused committed the offence.

 

[6]                    The onus of proof rests with the Crown throughout the trial. Corporal Liu does not have to establish that he did not commit the offences with which he is charged. Now, in this case, although the accused testified, he did not present an alternative version of events from that offered by the prosecution. His testimony was to the effect that he cannot recall much of the episode that occurred in Major Côté's office that forms the basis of these charges, and therefore, I need not instruct myself precisely on the W.(D.) case, and I am here referring to R. v. W.(D.), a 1991 decision of the Supreme Court of Canada reported at 63 C.C.C (3d). Nonetheless, of course, I am bound by that court's directions as to reasonable doubt contained in that case.

 

[7]                    Now, I turn to a consideration of the evidence in this case. There is really no substantial dispute as to what happened at the meeting in Major Côté's office on the 6th of February 2002. Nor is there really any dispute about the events leading up to the meeting. Corporal Liu had been convicted at a summary trial on the 21st of September 2001 for quarrelling with another member, and sentenced to a fine of $75 and four days' extra work and drill. It appears from the evidence that Corporal Liu and one of his co-workers did not get along. Both were convicted of quarrelling and there were suggestions the trouble between the two, whatever it was, was an ongoing issue within the workplace. It was decided, after the summary trial to which I have just referred, that Corporal Liu should be transferred to another section of the Aircraft Maintenance Organization; that section being, Aircraft Maintenance Support, headed by Major Côté.

 

[8]                    Now, between the 21st of September 2001 and 6th of February 2002, when the incidents we are dealing with here today arose, Corporal Liu was occupied, to a significant extent, with medical problems. On September 27th, 2001, he reported symptoms of work related situational anxiety to a Dr Morgan at the medical inspection room (MIR) and was prescribed medication. On the 11th of October 2001, he was seen by Dr Trueman, this time with apparently more severe symptoms of anxiety, and was given medication and sick leave as well as a temporary medical category. He was seen on subsequent occasions for anxiety related issues, and I will return to his medical state later in these reasons‒‒his mental medical state‒‒ later in these reasons. However, in late October 2001, Corporal Liu underwent a major knee surgery operation requiring two months' sick leave and light duties thereafter, for a period of time. In fact, as I understand it, he was on light duties at the time this incident occurred on the 6th of February 2002.

 

[9]                    He did not return to work at his new section until the first week of January 2002. Upon Corporal Liu's return to work in January 2002, it was communicated to him that a portion of the sentence imposed at his summary trial on the 21st of September 2001, remained outstanding and that he was required to complete four full days of extra work to satisfy the sentence. Corporal Liu was of the view, apparently, that since he was only working half days, his day of extra work ought to be half a day. Moreover, the extra work he was assigned involved climbing the steps of an aircraft and climbing to organize shelves. This was assigned despite his obvious physical limitations requiring the use of a cane. Corporal Liu was obliged to go back to the MIR to obtain more explicit medical directions as to his employment, given his physical limitations.

 

[10]                Apparently, Corporal Liu became concerned over this issue of extra work and drill that he was being obliged to perform and evidently was moved to write a memo, or memo's, to his superiors regarding the matter. The meeting of 6 February, in Major Côté's office, was held to discuss the issue of the extra work and drill said by the chain of command to be outstanding. Corporal Liu had no prior knowledge of the 6 February meeting. He was told by Master Warrant Officer Rerrie, one of his superiors and in his direct chain of command, that he should report to Master Warrant Officer Rerrie's office, and the two then proceeded to Major Côté's office. Present at the meeting, along with Major Côté, was Chief Warrant Officer Brown, the section chief, who apparently had disciplinary responsibilities within the Air Maintenance Support Organization. All participants were dressed in uniform with appropriate badges of rank affixed.

 

[11]                Apparently, from the evidence, Corporal Liu was initially calm when the meeting began. At some point during the short discussion of extra work and drill, Corporal Liu lost his composure, became tearful, and indicated that he was being victimized. He then, at least according to Master Warrant Officer Rerrie, regained his composure. However, shortly thereafter, when it was explained to Corporal Liu, by Major Côté, that he had to complete his punishment; that is to say, the extra work and drill that was in issue, Corporal Liu raised his voice and said words to the effect, "You fucking bastards, you are doing it to me again."

 

[12]                Corporal Liu thereupon stood up and proceeded to leave the room. He was instructed by Master Warrant Officer Rerrie who says, and I accept his evidence he was three or four feet from Corporal Liu, to, "Get back and sit down." But Corporal Liu responded, "I'm leaving" and continued out of the room. Master Warrant Officer Rerrie followed Corporal Liu to the elevator and, again, instructed him to return to Major Côté's office. Again, the instruction was not followed. Arrangements were then made for Corporal Liu to attend at the MIR given the unusual nature of the outburst and concerns that he might require medical attention.

 

[13]                The foregoing are the relevant facts which, as I have said, are not really in dispute here. The prosecution's position is that the evidence establishes, beyond a reasonable doubt, the essential elements of each offence charged. The defence position is, that because of the state of Corporal Liu's mental health at the time in question, he may have lacked the requisite mens rea for all three of the offences. Now, Mr Bright took pains to say he was not suggesting that this was a mental disorder issue, but that the particular circumstances of Corporal Liu's medical condition, at the material time, gives rise to a doubt about the mens rea component of these charges. As I also understand Mr Bright, he was not advancing a defence of automatism.

 

[14]                Now, a crime generally requires a guilty act and a guilty mind. The guilty act involves a physical element or actus reus. The guilty mind requires a mental or fault requirement often referred to as the mens rea. The mens rea consists of subjective or objective knowledge. It may also involve wilful blindness, wilfulness, recklessness, intention or purpose to carry out the prohibited act or state of affairs. Mens rea will vary depending on the definitional elements of the particular crime, and the foregoing principles, of course, are set out by the Supreme Court of Canada in R. v. Daviault, a 1994 case reported at 118 D.L.R. (4th), page 469. And more recently, these principles were canvassed by the Court Martial Appeal Court (CMAC) in R. v. Latouche, reported at 2000 C.M.A.J. No. 3.

 

[15]                Generally, mens rea requires an intention to commit a prohibited act combined with knowledge of the relevant circumstances. Offences are generally divided into those requiring specific intent and those requiring general intent. With general intent offences the result is not intended, and generally speaking the mens rea for general intent crimes is the intent to do the act, which constitutes the actus reus. And in my view, all three of these offences are general intent offences. I should say, at this juncture, it is not correct to speak, as it is sometimes, of a defence of lack of mens rea. The prosecution must prove beyond a reasonable doubt that the accused had whatever type of mens rea the crime requires. As well, as the CMAC said in Latouche, it is important to realize what mens rea is not, and this is at paragraph 22 of that decision:

 

Mens rea does not require that the accused have a morally ... reprehensible, unethical or evil state of mind. Moral blameworthiness must be distinguished from mental blameworthiness.

 

[16]                Moral blameworthiness deals with motive, and motive, of course, is not an essential element of a crime. These offences, in my view, require fault to be assessed by a subjective standard. They require proof of a positive state of mind; that is to say, an intention. In R. v. Creighton, a Supreme Court of Canada decision reported at (1993) 3 S.C.R. 3, and this quote by McLachlin J. is from page 58 of that decision, she there said:

 

The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its [consequences]. Even in the latter case, however, it is concerned with "what was actually going on in the mind of this particular accused at the time in question."

 

[17]                As I have just said, the test for mens rea is generally subjective. It is concerned with the accused's intent and his or her appreciation of the circumstances. Now, as I say, Mr Bright submits there is a medical issue, or medical state here, which I must consider in determining whether Corporal Liu, at the relevant time, had the requisite intent, or mens rea, with respect to these charges. To put it another way, in other words, he is saying the mental state of the accused, at the time, raises a reasonable doubt as to the mens rea, or intent, required for the offences.

 

[18]                In a number of cases in this country it has been held that evidence falling short of what is required to establish the defence of insanity may still be sufficiently strong as to create a reasonable doubt as to the accused's capacity to form the requisite mens rea of the offence charged. Cases such as: R. v. Hilton, a 1977 case of the Ontario Court of Appeal reported at (1977) 34 C.C.C. (2d) 206; R. v. Baltzer, a decision of the Court of Appeal in this province, Nova Scotia, reported at (1976) 27 C.C.C. (2d) 118; and R. v. Lechasseur, a 1977 case of the Quebec Court of Appeal reported at (1978) 38 C.C.C. (2d) 319. However, interestingly enough, in 1979, these cases were expressly overruled by the Alberta Court of Appeal in a case called R. v. Wright reported at (1980) 48 C.C.C. (2d) 334. At page 345 of that decision that court said:

 

[I]n the absence of a finding of insanity, lack of intent cannot be based on a lack of mental capacity to form the requisite intent.

 

The court went on to say such evidence, however, could be used:

 

[F]or the limited purpose of showing [the accused] did not in fact form the requisite intent.

 

[19]                Now, the Supreme Court of Canada has also spoken to this issue in R. v. Chartrand, reported at (1977) 1 S.C.R. 314. The court said Canadian law does not recognize a diminished responsibility theory. A mental illness less than insanity cannot be considered in determining if the accused had the capacity to form the requisite intent for a crime. However, Martin J.A. of the Ontario Court of Appeal in Rabey, and this is in 1978 reported at 37 C.C.C. (2d) 461, held that when a person acts out of extreme rage psychiatric evidence related to the accused's state of mind would not normally be admissible. However, evidence of an abnormal state of mind would be relevant and admissible on the issue of the specific intent required to support a conviction for the offence.

 

[20]                When that case, Rabey, reached the Supreme Court of Canada, that court, the Supreme Court of Canada, appeared to support that position. And Rabey in the Supreme Court of Canada is reported at (1980) 2 S.C.R. 513. There is, therefore, some question as to whether the so-called diminished responsibility theory exists in Canada, and I could not find a more recent pronouncement by the Supreme Court of Canada on this issue. However, that brief encapsulation of the law on diminished responsibility, having said that, I, however, assuming without deciding that evidence of a mental health issue short of insanity may create a reasonable doubt as to mens rea in this country, I am not satisfied for the reasons which follow the evidence of Corporal Liu's mental issues and the expert opinion pertaining thereto, in and of itself, raises a reasonable doubt as to his capacity to formulate the intent required.

 

[21]                The medical evidence, here, is that Corporal Liu suffered from situational anxiety. He was initially diagnosed on the 27th of September 2001. His condition was not classically chronic, although it persisted, because according to Dr Trueman the stressors which precipitated the anxiety remained in place. She described situational anxiety as quite common and that she has treated many people with the condition. Medication and counselling were prescribed. He was assigned; that is to say, Corporal Liu was assigned, a temporary medical category at one point. The last time he was assessed by a physician, before the incident, was January 23rd, 2002. At that point he was on Amitriptyline, an anti-depressant, which also assists with insomnia and headaches. At that juncture some improvement was noted in his sleep cycle and his headaches had moderated.

 

[22]                Dr Trueman said, that when Corporal Liu was brought to her on the 6th of February 2002, after the incident we are here dealing with, he was incoherent with emotion and required sedation to calm him down. He then composed himself, and was able to discuss the situation. She said Corporal Liu tried to get some perspective on the episode, and indicated he did not wish to quit as he had apparently indicated at some point during the incident earlier on in the day. She went on to say Corporal Liu did not report a "black out." She did say that cursing, swearing, and so forth, could be conduct consistent with Corporal Liu's condition. She also said, in direct examination, that the lack of a recollection, or recollection, rather, of the relevant events, could be consistent with Corporal Liu's condition, as well.

 

[23]                It is important to note, at this point, that there was no evidence of Corporal Liu being in a dissociative state, or that his mental faculties were somehow impaired at the relevant time; and that is to say, the relevant time on the 6th of February 2002. It may be that his memory of the event was diminished, but of course, loss of memory does not mean that at the time he committed the offences he did not have a requisite mens rea. It is not an unheard of phenomenon for accused persons to have memory loss of events for which they are charged. I note in passing, one of the experts called at the Stone trial indicated up to 50 per cent of people who commit serious crimes do not remember the incident. And the Stone cite, as counsel well know, is R. v. Stone (1999) 2 S.C.R. 290, and that statistic is from paragraph 122 of that decision.

 

[24]                The fact of the matter is the accused does have some memory of the episode in Major Côté's office. He testified, himself, that he remembered, during the episode, swearing, threatening to quit, and saying, "Talk to my lawyer," or words to that effect. He said, in direct exam, he remembers being at the elevator with Master Warrant Officer Rerrie and Master Warrant Officer Rerrie saying to him, "You're going to be in trouble. You just don't walk out." His memory of this certainly suggests he was processing information at the time and was aware of what he was doing. He shortly thereafter said, to Sergeant Whitman, "I quit, I'm going home." Master Warrant Officer Rerrie, whose evidence I accept as credible, testified that he was within three or four feet of Corporal Liu when he directed him to, "Get back and sit down." He said Corporal Liu responded by saying, "I'm leaving." Again, this, to my mind, is another indicator that Corporal Liu's mind was functioning during the 6th of February incident and he was aware of what was happening and making conscious choices and decisions.

 

[25]                In cross-examination, Dr Trueman reiterated that memory loss was not inconsistent for someone with Corporal Liu's condition. She went on to say, that for someone who is chronically stressed, an additional stressor may bring on a surge of adrenaline that can make behaviour somewhat automatic or reflexive rather than deliberate. She postulated that this could have been the case with Corporal Liu on the morning of 6 February 2002 in Major Côté's office. However, when I place Dr Trueman's comments in context, I do not take her comments to mean that he was not, at that point in time, or possibly not, at that point in time, capable of functioning mentally or that he was dissociating. I do not believe she meant that.

 

[26]                What she was saying, it seems to me, is that he may have been more aggressive, more quick to respond, perhaps less inhibited, and perhaps more impulsive than what otherwise would have been the case. His anger threshold may well have been lowered and he may well have acted out of character. In the vernacular, in the words of one of the witnesses, he may have snapped and become enraged. In fact, there was some evidence that he may have gotten angrier on at least one previous occasion. This, of course, does not mean he was not aware of what he was doing or incapable of making decisions. The law presumes that people act voluntarily, and that classic quote, of course, is from the Stone case, paragraph 41, the case I just quoted.

 

[27]                I should say, as well, that I find it significant that Dr Trueman's expert evidence really did not go to Corporal Liu's capacity to form the necessary intent for these offences. Her testimony went, to a larger degree, to his ability to recall. She also, I note in passing, used the term consistent, in describing Corporal Liu's behaviour, on a number of occasions, without really providing a true clinical description as to what was mentally happening with Corporal Liu.

 

[28]                I now turn to a consideration of the elements of the particular offences here. The first charge alleges a breach of section 83 of the NDA in that Corporal Liu did not return to Major Côté's office when ordered to do so by Master Warrant Officer Rerrie. Section 83 of the NDA is, in my view, a general intent offence as I indicated earlier. The defence has indicated there is no dispute as to the identification of the offender and date and place. There is also no dispute that Master Warrant Officer Rerrie was a superior of Corporal Liu and known to Corporal Liu as such, and that on the occasion in question, the order was lawful. The prosecution must also prove, beyond a reasonable doubt, that the command was transmitted or made known to the accused and that there was non-compliance with the command. And of course the requisite intent not to comply with the command must also be proven.

 

[29]                There is no doubt Corporal Liu did not return to the room as he was ordered to do and the defence admits as much. I am also satisfied beyond a reasonable doubt that Corporal Liu had the requisite intent not to obey the command to return. The command was passed to him from three or four feet in clear and unambiguous terms by Master Warrant Officer Rerrie, who is evidence I accept in this regard. Master Warrant Officer Rerrie said, "Corporal Liu said I'm leaving." Corporal Liu also remembers being told, either near or in the elevator, words to the effect, "You're going to be in trouble. You just can't walk out." I find Corporal Liu, in these circumstances, and I make this finding bearing in mind his medical situation at the time, that he either intended to disobey the order given, or was wilfully blind to it. I find the prosecution has made out all of the essential elements of charge number one beyond a reasonable doubt.

 

[30]                I turn, now, to charge number two. This charge alleges a breach of section 85 of the NDA, behaved with contempt towards a superior officer. The charge alleges that on the 6th of February 2002, the accused, at 14 Air Maintenance Squadron Greenwood, said to Major Côté, "This is bullshit" and "You fucking bastards are doing it to me again" or words to that effect. Again, there is no dispute as to the identification of the offender or date or place. There was no serious dispute that these words were spoken, and in any event, I would accept the evidence of Master Warrant Officer Rerrie in that regard. Contempt is defined in the Concise Oxford English Dictionary, 10th Edition, as "the feeling that a person or thing is worthless or beneath consideration." I do not find it necessary to analyse the words spoken here. To any right-thinking person they were clearly contemptuous and I find they were directed towards a superior officer who was known as such to Corporal Liu.

 

[31]                On the evidence, the accused was looking in the direction of Major Côté when he made the comments. There was some thought on the part of some witnesses the comment may have been addressed to the system or the senior management of the unit. In any event, I am satisfied beyond a reasonable doubt, in the circumstances, Corporal Liu meant to include Major Côté with whatever group he was addressing those remarks to. As for mens rea, there must be an intention to behave contemptuously, as opposed, for example, to making a joke. Here, in my opinion, the intention can be divined from the circumstances and the spoken words. Spoken words usually require conscious thought and there is no evidence Corporal Liu was not in a conscious thinking state. In these circumstances, and again bearing in mind the medical evidence as to Corporal Liu's condition, I find, beyond a reasonable doubt, the prosecution has proven the mens rea component of this offence. All of the elements of charge number two are, I find, proven beyond a reasonable doubt.

 

[32]                I would finally note that the accused did not advance the defence of automatism. I might add, that had he done so, following the criteria set out by Bastarache J. in Stone, which I referred to earlier, I would not have found, on a balance of probabilities, that the accused was in a state of automatism when these events occurred. I would have made this finding on the basis of the lack of evidence of an automatism state.

 

[33]      Corporal Liu, the court finds you guilty on charge number one and on charge number two. The court directs a stay of proceedings on charge number three.

 

Counsel:

 

Major R. Holman, Regional Military Prosecutions Atlantic, Counsel for Her Majesty the Queen

 

Mr David J. Bright, QC, Boyne-Clarke Barristers and Solicitors, Halifax, Nova Scotia, Counsel for Corporal C.A.T. Liu