Courts Martial

Citation:  R. v. Petty Officer 1st Class B.P. Bradt,2009 CM 4004

Docket:  200850

STANDING COURT MARTIAL

CANADA

QUÉBEC

CENTRE ASTICOU

Date:  13 March 2009

PRESIDING:  LIEUTENANT-COLONEL J-G PERRON, M.J.

HER MAJESTY THE QUEEN

v.

PETTY OFFICER 1ST CLASS B.P. BRADT

(Accused)

FINDING

(Rendered Orally)

INTRODUCTION

[1]                    The accused, C20 033 248 Petty Officer 1st Class Bradt, is charged with having committed seven offences.  He stands accused of one charge under section 112 of the National Defence Act of having used a vehicle of the Canadian Forces for an unauthorized purpose, of three charges under section 130 of the National Defence Act of a breach of public trust by public officer contrary to section 122 of the Criminal Code of Canada, of two charges under section 117 of the National Defence Act of having committed an act of a fraudulent nature and of one charge under section 129 of the National Defence Act of having used subordinates to perform tasks for his personal benefit.

[2]                    The prosecution asserts that the evidence presented to this court proves beyond a reasonable doubt every element of the alleged offences.  The prosecution argues that Petty Officer 1st Class Bradt committed the alleged offences by having Corporal Newton drive him home with a CF vehicle and stopping to buy feed for the horses he boards on his farm, by having the members of his section come to his residence during work hours to chop wood for his personal use and by having his subordinate buy a propane heater and propane tanks and having him deliver these items to his farm.

[3]                    The accused asserts that the evidence has not proven beyond a reasonable doubt every essential element of each offence.

THE APPLICABLE LAW

[4]                    Before this court provides its analysis of the evidence and of the charges, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamental to all criminal trials.  Although these principles are well known to counsel, other people in this courtroom may be less familiar with them.

[5]                    It is fair to say that the presumption of innocence is the most likely most fundamental principle in our criminal law, and the principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence.  In matters dealt with under the Code of Service Discipline, as with cases dealt with under Canadian criminal law, every person charged with a criminal offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt.  An accused person does not have to prove that he or she is innocent.  It is up to the prosecution to prove its case on each element of the offence beyond a reasonable doubt.  An accused person is presumed innocent throughout his or her trial until a verdict is given by the finder of fact.

[6]                    The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution's case, but to the total body of evidence upon which the prosecution relies to prove guilt.  The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

[7]                    A court must find an accused person not guilty if it has a reasonable doubt about his or her guilt after having considered all of the evidence.  The term:  "beyond a reasonable doubt" has been used for a very long time.  It is a part of our history and traditions of justice.

[8]                    In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model chart on reasonable doubt.  The principles layed out in Lifchus have been applied in a number of Supreme Court and appellate court decisions.  In substance, a reasonable doubt is not a far-fetched or frivolous doubt.  It is not a doubt based on sympathy or prejudice, it is a doubt based on reason and common sense.  It is a doubt that arrives at the end of the case, based not only on what evidence tells the court, but also on what that evidence does not tell the court.  The fact that a person has been charged is no way indicative of his or her guilt.

[9]                    In R. v. Starr, [2000] 2 S.C.R. 144, at paragraph 242, the Supreme Court held that:

... [A]n effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.

On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty.  The prosecution is not required to do so.  Absolute certainty is a standard of proof that does not exist in law.  The prosecution only has the burden of proving the guilt of an accused person, in this case Petty Officer 1st Class Bradt, beyond a reasonable doubt.  To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[10]                  What is evidence? Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did.  It could be documents, photographs, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the prosecution or the defence, and matters of which the court takes judicial notice.

[11]                  It is not unusual that some evidence presented before the court may be contradictory.  Often, witnesses may have different recollections of events.  The court has to determine what evidence it finds credible.

[12]                  Credibility is not synonymous with telling the truth, and a lack of credibility is not synonymous with lying.  Many factors influence the court's assessment of the credibility of the testimony of a witness.  For example, a court will assess a witness's opportunity to observe, a witness's reasons to remember.  Was there something specific that helped the witness remember the details of the event that he or she described?  Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably, more difficult to recollect?  Does a witness have an interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?  This last factor applies in a somewhat different way to the accused.  Even though it is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit a conclusion that an accused will lie where that accused chooses to testify.

[13]                  Another factor in determining credibility is the apparent capacity of the witness to remember.  The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant, or argumentative?  Finally, was the witness's testimony consistent with itself and with the uncontradicted facts?

[14]                  Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded.  However, a deliberate falsehood is an entirely different matter.  It is always serious, and it may well tint a witness's entire testimony.

[15]                  The court is not required to accept the testimony of any witness, except to the extent that it has impressed the court as credible.  However, a court will accept evidence as trustworthy unless there is a reason rather to disbelieve it.

[16]                  The court must focus its attention on the test found in the Supreme Court of Canada decision of R. v. W.(D.), [1991] 1 S.C.R. 742.  As established in that decision, at page 758, the test goes as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[17]                  Having instructed myself as to the onus and standard of proof, I will now turn to the questions in issue before the court.

THE EVIDENCE

[18]                  The evidence before this court is composed essentially of the following:  judicial notice, testimonies and exhibits.  Judicial notice was taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence.  The testimonies heard in the order of their appearance before the court are those of Sergeant Pernitzky, Sergeant Sawyer, Corporal Newton, Master Warrant Officer Hanna, Master-Corporal Bertrand and Petty Officer 1st Class Bradt.

[19]                  Three exhibits were entered by the prosecution and one exhibit was entered by defence counsel.

[20]                  Petty Officer 1st Class Bradt was the last witness to testify.  He stated that he had received a minimal handover when he arrived at DHTC, that he was not provided with much direction when he took over the food services section, that there were no section SOPs, that he had a five minute interview with the CO, that he was alone in his section from June to October 2006 and that he had inherited a fractured, dysfunctional section.  There were four persons in his section and he felt there was work for 10 to 12 people.  He had been posted from CFB Esquimalt to DHTC after having spent approximately 23 years at CFB Esquimalt.  The court concludes from his testimony that he was not too pleased with his situation.  As Petty Officer 1st Class Bradt stated, his wife agreed to this posting on the condition that she could get the type of employment she desired.  She had a passion for horses; therefore, they bought a farm to permit his wife to run a horse boarding business.

[21]                  PO1 Bradt stated that the personnel issues in his section were his main focus.  He thought that a sports afternoon where the members of the section would chop wood at his residence would improve the section, that it would act as a team building exercise before they left for the unit exercise in British Columbia.  It would allow them to "blow off steam."  He would have introduced the idea to the section during a coffee break a few days before by saying that he had some firewood that he had to chop during the weekend and that the guys could come help him on Friday and that it would be considered a sports day.  A few days before the activity, Sergeant Pernitzky would have told him that Sergeant Sawyer and Corporal Newton did not want to come.  PO1 Bradt would have replied that he could not order them to come.  Sergeant Pernitzky would have then have stated that he had ordered them to attend because it was "the army way."  PO1 Bradt would have again said he could not order them to come and he did not want them to be there if they did not want to come because it would be looking for trouble.  Sergeant Pernitzky told him they would come for a short period of time.  PO1 Bradt would then have replied that any help is better than no help.

[22]                  The court is quite puzzled by this version of events.  Petty Officer 1st Class Bradt's stated reason for this activity was to improve the morale of the section.  How could he then expect to achieve this objective by agreeing with the order given by Sergeant Pernitzky when he knew his subordinates did not want to chop wood.  In cross-examination, he stated that he was unsure as to why his troops did not want to come to his house.  He could have told them not to come to his house but he did not do so.  While he states that his section was continually busy and this his personnel was his main focus, he does not seem interested in knowing why his subordinates are not interested in participating in this morale boosting activity.

[23]                  He also spoke about his past experience of working with civilians and the sensitivity of working with civilians and that "he did not want to cross that line."  This last explanation confuses matters even more since none of the subordinates involved in the charges before this court are civilian employees.  It is quite understandable that any military supervisor will have to interact with civilian employees in a manner that is quite different from his or her dealings with military subordinates.  Having said that, the court can find no logical basis for this portion of his explanation as to why he could not order them to participate in this activity.

[24]                  During his cross-examination, Petty Officer 1st Class Bradt initially thought he was on a "CTO" on 23 March 2007.  The court understands the term "CTO" to mean:  compensatory time off; this would mean that Petty Officer 1st Class Bradt would not have been on duty that day.  He then corrected himself by mentioning that he was at work until approximately 1145 hours that day and that the afternoon was also considered as work hours.

[25]                  Petty Officer 1st Class Bradt also stated that he had sent an email to Master Warrant Officer Hanna informing him that his section would chop wood during the afternoon of 23 March 2007.  Master Warrant Officer Hanna clearly stated that he never knew anything about the sports day until after the exercise in BC.  He also stated that no one had ever approached him for his permission for this sports day.  He also confirmed during his cross-examination that he did not have any discussions with Petty Officer 1st Class Bradt about a sports day for the section.  He was not asked by defence counsel if Petty Officer 1st Class Bradt had sent him an email concerning wood chopping as a sports day.  It is a fundamental aspect of Canadian law that counsel must confront a witness with any new material or contradictory material she or he intends to adduce or rely on after the witness has left the box.  That rule is generally known as the Browne and Dunn rule.  A failure to cross-examine may have a negative impact on the accused's credibility.

[26]                  Petty Officer 1st Class Bradt testified that the personal use of CF vehicles was allowed.  He cited an example where he would have asked Master Warrant Officer Hanna and received Master Warrant Officer Hanna's permission for a member of his section to use a section truck to move furniture during a weekend.  This assertion was not put to Master Warrant Officer Hanna or to the members of the section who were the other prosecution witnesses.  I would again refer to the Browne and Dunn rule.  During his examination in chief, Master Warrant Officer Hanna stated that the policy at the unit did not allow for personal use of CF vehicles.  He had authorized Petty Officer 1st Class Bradt to use a section vehicle to attend a course in Borden but he had never authorized him to bring a vehicle to his residence.

[27]                  Petty Officer 1st Class Bradt explained why Corporal Newton had driven him home.  They had left at the end of the day with the intention of going to Petawawa the next day to do a stocktaking of their equipment in Petawawa.  Petawawa is closer to Petty Officer 1st Class Bradt's residence than it is to DHTC.  He then said that the plan had changed but he did not know the exact details as to why it had changed.  It would appear the section truck was required by the unit for some other task and the trip to Petawawa was delayed by 1 or 2 days.  He did not specify when the plan was changed.  He testified during this cross-examination that Corporal Newton had supper at his house and that he then changed his mind and decided to return to his quarters although that had not been the original intent.  He testified that Corporal Newton only informed him after supper of his change in plans.

[28]                  Again, the court is left puzzled by the testimony of Petty Officer 1st Class Bradt.  Did the plan change during the drive to Petty Officer 1st Class Bradt's residence or just before supper?  If the plan had been changed during that day or previously and they were not supposed to go to Petawawa the next day, then why would they drive to his house in a section truck and why would Corporal Newton have to stay that night at Petty Officer 1st Class Bradt's residence?

[29]                  Petty Officer 1st Class Bradt testified he was not aware of any unit policy on the use of unit equipment and that his 2IC had told him that it was common practice to sign out items.  His CF experience was to the effect that Class C and Class D items could be signed out.  The section needed a propane heater and tanks and he did some research for cost comparison.  He instructed Sergeant Pernitzky to buy the heater and the tanks because he did not have an acquisition card and he also thought there might be a conflict of interest since he was the FAA section 32 authority.  He stated that Sergeant Pernitzky showed unannounced at his residence with the heater and the tanks.  Sergeant Pernitzky was not cross-examined on that specific assertion by Petty Officer 1st Class Bradt.  Petty Officer 1st Class Bradt then told Sergeant Pernitzky to leave the heater and the tanks at his residence so he could test fire them.  He later signed a temporary loan card for this equipment.

[30]                  The court does not find Petty Officer 1st Class Bradt to be a credible witness.  His explanations concerning the wood chopping afternoon and the trip to his house with Corporal Newton are at best puzzling.  He states that the plan had changed concerning the trip to Petawawa the next day.  He did not mention when this change of plan occurred.  One would have to assume that the change occurred after they left DHTC.  His explanation for this change of plan for the trip to Petawawa is extremely suspect.  His stated concern for the morale of his troops and his description of his discussion with Sergeant Pernitzky is also quite suspect.  His demeanour and his testimony do not support his assertion that his personnel was his main focus.  I gather from his testimony that his main focus was himself and his farm.

[31]                  Because I do not consider Petty Officer 1st Class Bradt a credible witness, I do not believe his testimony unless it is corroborated by some other evidence.  Therefore, since I do not believe the evidence of the accused and I am not left with a reasonable doubt by his evidence, I will turn my mind to the third step of the test found in the R. v. W.(D.) decision.  With this conclusion in mind, I will now examine every charge.  Before I do so, I will comment on the witnesses and their evidence.

[32]                  Master-Corporal Bertrand was the other witness for the defence.  His sole purpose as a witness was to introduce the CF 638 temporary loan card filled out by Petty Officer 1st Class Bradt.

[33]                  Sergeant Pernitzky, Sergeant Sawyer and Corporal Newton testified for the prosecution.  All three testified concerning the wood chopping sports afternoon of 23 March 2007.  Sergeant Sawyer and Corporal Newton testified on the events leading to charges 1 and 2.  Sergeant Pernitzky testified on the events at the heart of charges 5 and 6.  Sergeant Sawyer and Corporal Newton are deemed credible in that they answered every question posed by both counsel in a straightforward manner and to the best of their recollection.  Their reliability is only affected by the passage of time.

[34]                  Sergeant Pernitzky is deemed a credible witness but not very reliable.  Although he was at times argumentative during his cross-examination and he did provide lengthy answers, this behaviour seems to be the result of the high level of anxiety he displayed while testifying.  He was often defensive during cross-examination but this attitude is not judged to be one of bad faith but as a result of anxiety.  He is a very nervous individual and his recollection of events are affected by the passage of time and by his anxiety both when he was testifying and during the events that led to some of these charges.  He testified that he could not sleep after he had been told on the Sunday of the upcoming sports afternoon involving the chopping of wood at Petty Officer 1st Class Bradt's residence.  He went to see the unit psychologist on Monday because he felt so stressed by that situation.

[35]                  Notwithstanding these general comments on the credibility and reliability of these prosecution witnesses, key portions of their testimonies are consistent and provide this court with a certain picture of the events that led to these charges.

[36]                  Sergeant Pernitzky, Sergeant Sawyer and Corporal Newton did not want to go chop wood at Petty Officer 1st Class Bradt's residence on Friday 23 March 2007 but each individual felt obliged to do it since they felt it was in their best interest to abide by Petty Officer 1st Class Bradt's directive.  Sergeant Pernitzky felt it was in their best interest so they could get some time off after the exercise in British Columbia and he did not want to challenge his immediate supervisor and risk disciplinary action.  Sergeant Sawyer described the atmosphere within the section as intense and as:  "walking on pins and needles."  He agreed to participate in the afternoon because he might get more work thrown at him or work longer hours if he did not do what was asked.  Corporal Newton testified that he had been given the option not to participate by Sergeant Pernitzky but that he felt it was in his best interest to participate in the wood chopping afternoon since he did not feel safe in his job at the time.

[37]                  They worked in two groups.  Sergeant Sawyer and Sergeant Pernitzky were at one end of the pile of trees and Petty Officer 1st Class Bradt and Corporal Newton were at the other end.  Sergeant Sawyer and Petty Officer 1st Class Bradt cut the logs with a chainsaw and Sergeant Pernitzky and Corporal Newton chopped the logs.  These three witnesses also described a very tensed group during the wood chopping afternoon.  Each described how quiet they were and the looks of frustration they had on their faces.  Sergeant Sawyer described the "evil look" in Sergeant Pernitzky's eyes while he was chopping wood.  Sergeant Sawyer testified that Corporal Newton was very upset and the he got a dirty look from him.  Corporal Newton testified that Sergeant Sawyer did not speak with anyone.  Sergeant Pernitzky testified that Corporal Newton threw logs in the mud and got some "flack" from Petty Officer 1st Class Bradt.  He described this a clowning around.  Corporal Newton testified that he had thrown logs in the mud as he was trying to keep up with Petty Officer 1st Class Bradt who was cutting the logs with a chainsaw.  Petty Officer 1st Class Bradt told him to stop doing that.

[38]                  They also testified they heard Petty Officer 1st Class Bradt say he would sell the wood they had cut.  Corporal Newton testified he had told them during a break while Sergeant Sawyer testified it was said when they were having a beer at the end of the afternoon.  Sergeant Pernitzky testified he heard Petty Officer 1st Class Bradt say that when Petty Officer 1st Class Bradt was talking to his wife at the end of the afternoon.  It is clear from these testimonies that each witness understood that Petty Officer 1st Class Bradt intended to sell the wood they had chopped so he could make enough money to pay fo the whole load of wood.

[39]                  I will now deal with each charge.  Charge No.1, used a vehicle of the CF for an unauthorized purpose.  The particulars of this charge read as follows:

"In that he, between September 2006 and May 2007, at or near Ottawa, Ontario, without authority used one or more vehicles of the Canadian Forces for his personal use."

[40]                  The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

(a)  the identity of the accused as the offender and the date and place as alleged in the charge sheet;

(b)  that the accused used a vehicle;

(c)  that the vehicle was a vehicle of the CF;

(d) that the use of the vehicle had not been authorized; and

(e)  that the accused intentionally used the vehicle.

[41]                  The identity of the offender is not in question in this charge or in any of these charges.  The identity of the offender and the date and place as alleged in the charge sheet have not been disputed by defence counsel and have been proven by the testimony of Petty Officer 1st Class Bradt and Corporal Newton.  According to Corporal Newton, Petty Officer 1st Class Bradt told Corporal Newton to accompany him to his house.  Petty Officer 1st Class Bradt drove the truck.  Corporal Newton was present so he could return the truck to DHTC.  Corporal Newton testified this trip to Petty Officer 1st Class Bradt's house occurred in early March 2007, approximately one to two weeks before they participated in the unit exercise in BC.  Corporal Newton also testified that he had seen Petty Officer 1st Class Bradt leave at the end of the work day with one of the section's trucks a few times before this incident but he did not know if Petty Officer 1st Class Bradt had received the permission to use the section truck on those occasions.  On their way to Petty Officer 1st Class Bradt's residence, they stopped to purchase feed and wood chips for the horses.  Corporal Newton helped load and unload the feed and the wood chips.

[42]                  It is evident from the testimony of Petty Officer 1st Class Bradt and Corporal Newton that a CF vehicle was used to drive Petty Officer 1st Class Bradt to his residence and to pick up feed and wood chips along the way.

[43]                  It is clear from the evidence Master Warrant Officer Hanna that CF vehicles were not to be used for personal purposes.  Sergeant Pernitzky, Sergeant Sawyer and Corporal Newton also testified that CF vehicles could not be used for personal purposes.  Only Petty Officer 1st Class Bradt testified that personal use was permitted.  The court has already declared that it does not believe Petty Officer 1st Class Bradt's explanation for his use of the section truck that day.  The court concludes that the evidence the court accepts proves beyond a reasonable doubt that Petty Officer 1st Class Bradt intentionally used the section vehicle to drive to his residence that day and that this use was not authorized by a superior or by unit policy.  To make matters worst, Petty Officer 1st Class Bradt ordered Corporal Newton to accompany him so he would have some help in loading and unloading of the feed and of the wood chips and he would have someone to return the truck to DHTC.

[44]                  Charges Nos. 2, 4 and 6 which allege a breach of public trust by a public officer contrary to section 122 of the Criminal Code.  The particulars of charge No. 2 read as follows:

"In that he, between September 2006 and May 2007, at or near Ottawa, Ontario, being an official holding a position or an employment in a public department did commit a breach of trust in connection with the duties of his office by using one or more vehicles of the Canadian Forces for his personal use."

The particulars of charge No. 4 read as follows:

"In that he, on or about 23 March 2007, at or near Ottawa, Ontario, being an official holding a position or an employment in a public department did commit a breach of trust in connection with the duties of his office by having firewood chopped by his subordinates at his residence during working hours."

And the particulars of charge No. 6 read as follows:

"In that he, on or about 16 February 2007, at or near Ottawa, Ontario, being an official holding a position or an employment in a public department did commit a breach of trust in connection with the duties of his office by having a propane heater and two propane tanks purchased with public funds and delivered at his residence by a subordinate."

[45]                  The prosecution had to prove the following essential elements for these offences beyond a reasonable doubt:

(a)  the identity of the accused as he offender and the date and place as alleged in the charge sheet;

(b)  that the accused is an official;

(c)  that the accused was acting in connection with the duties of his or her office;

(d) that the accused breached the standard of responsibility and conduct demanded of him or her by the nature of his or her office;

(e)  that the conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust; and

(f)  that the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

[46]                  The identity of the accused as the offender and the date and place of the offence have not been contested by defence counsel in any of these three charges.  The evidence of Petty Officer 1st Class Bradt and of Corporal Newton has proven these elements for charge No.2.  It is the same evidence as in the first charge.  The evidence of Petty Officer 1st Class Bradt, Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton has proven these elements for charge No.4.  It is the same evidence as in the third charge.  The evidence of Petty Officer 1st Class Bradt and Sergeant Pernitsky has proven these elements for charge No.6.  It is the same evidence as in charge No. 5.

[47]                  There can be no doubt that any member of the CF is considered an official as that term is defined in the Criminal Code of Canada.  Office is defined in the Criminal Code of  Canada as:

(a) an office or appointment under the government,

(b) a civil or military commission, and

(c) a position or an employment in a public department.

Although CF members may never be understood to be employed by a public department as is the case for public servants, the CF is a part of the federal government and CF members work for the Canadian government.  This falls within the definition of office as found at section 118 of the Criminal Code of Canada.  Therefore, a CF member is an official since he or she is a person who holds an office.  This finding also applies to this element in charges No. 4 and 6.

[48]                  I will now deal with the third element of these offences, specifically that the accused was acting in connection with the duties of his or her office.  Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton were members of the food services section and PO1 Bradt was in charge of that section and held the title of Kitchen Officer.

With regards to charge No.2: Petty Officer 1st Class Bradt was acting in his capacity of Kitchen Officer when he drove the section truck to his residence and when he directed Corporal Newton to accompany him.

With regards to charge No.4, it is evident the accused was acting in connection with the duties of his office in that he planned this sports afternoon for his section.  He was the Kitchen Officer and he told his food services section they would have a sports afternoon.

With regards to charge No.6, the accused as Kitchen Officer had the authority to order Sergeant Pernitsky to go purchase a propane heater and propane tanks.

[49]                  I will now deal the fourth element of this offence, specifically that the accused breached the standard of responsibility and conduct demanded of him or her by the nature of her office.  Chapter 5 of QR&O require a non-commissioned member to become acquainted with, observe and enforce the National Defence Act, Security of Information Act, QR&O and all other regulations, rules, orders and instructions that pertain to the performance of the member's duties.  Non-commissioned members must also promote the welfare, efficiency and good discipline of all who are subordinate to the member and ensure the proper care and maintenance and prevent the waste of all public and non-public property within the member's control.  As a petty officer 1st class in charge of the food services section, he was entrusted with proper care and maintenance of the vehicle and equipment of that section.  He was also responsible for the welfare and discipline of his subordinates.

With regard to charge No.2, the policy on the use of CF vehicles for personal purposes was well known amongst the group.  The standard of responsibility and conduct is obvious in that he is to perform the duties and responsibilities enumerated in chapter 5 of Queen's Regulation and Orders as well as the added duties and responsibilities of every senior and non-commissioned member who is in charge of subordinates.  He had to respect the policy on the use of CF vehicles and enforce this policy.  He breached that standard of responsibility when he used a CF vehicle for his personal benefit and by ordering a subordinate to accompany him after working hours to return that vehicle to DHTC.

With regard to charge No.4, every person knows that activities performed during working hours must be to the benefit of the organisation that ultimately pays that person a wage for these working hours.  Every member of the CF knows that military duties must be performed during work hours; common sense tells us that.  As the head of the food services section, Petty Officer 1st Class Bradt was responsible for the efficient use of the resources assigned to his section to accomplish the tasks assigned to his section.  This includes the personnel assigned to the food services section.  He failed to do this by having them chop his firewood for his personal benefit during working hours on 23 March 2007.

With regard to charge No.6, the prosecution has not provided any evidence that would demonstrate what the exact standard expected of the accused in the specific circumstances of this charge.  To the contrary, Sergeant Pernitsky testified that he saw nothing wrong in leaving the propane heater and the tanks at Petty Officer 1st Class Bradt's residence since Petty Officer 1st Class Bradt wanted to test the equipment and had filled out a temporary loan card.  This element of this offence has not been proven beyond a reasonable doubt by the prosecution.

[50]                  I will now deal with the fifth element of this charge, specifically that the conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust.

For charge No.2, it seemed clear to every witness except Petty Officer 1st Class Bradt that CF vehicles could not be used for personal use unless specific authority had been granted for such use.  Common sense use such as dropping by the bank or some other short stop while on an official trip would be acceptable.  Using a CF vehicle to go to a course in Borden would be deemed acceptable under certain circumstances and with the proper authority.  Using a CF vehicle to drive home after a day's work without having received the authority to do so and without any reasonable explanation is a serious and marked departure from the standards expected of an individual in the accused's position.  The public must trust CF members to only use CF vehicles for official business and not as their own property.

For charge No.4, the evidence of Petty Officer 1st Class Bradt was to the effect that they were four people doing the work of 10 to 12 people.  Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton all testified that they were extremely busy in March 2007.  In such circumstances, Petty Officer 1st Class Bradt had to ensure that his personnel were employed with the goal of accomplishing the myriad of tasks they had to complete during that period of time.  Having subordinates perform work such as chopping firewood for the superior's personal benefit during work hours is a serious and marked departure from the standards expected of an individual in the accused's position of public trust.  Again, the public must trust the CF to only employ its personnel for official business and for the public good and not for the personal benefit of superiors.

For charge No.6, the prosecution has not provided any evidence to prove beyond a reasonable doubt the marked departure from the standards expected of the accused.  The prosecution has provided no evidence on this element.

[51]                  I will now examine the mens rea element of each offence, specifically that the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt or oppressive purpose.

The evidence found in the testimony of Sergeant Pernitsky and Sergeant Sawyer indicates that Petty Officer 1st Class Bradt lives on a farm near Arnprior, Ontario which is approximately a 30 to 40 minute drive from DHTC.  Petty Officer 1st Class Bradt indicated it was a 45 minute drive from his house to DHTC.  There is no public good that can be deduced from the evidence accepted by this court.  Petty Officer 1st Class Bradt used his position as Kitchen Officer and chose to use a CF vehicle to return home from work to serve his personal purpose and not for a public good.

With regards to charge No.4, Petty Officer 1st Class Bradt chose to have members of his section come to this residence to chop his firewood on 23 March 2007.  Master Warrant Officer Hanna testified that he was never asked for his permission for this activity and that he never knew anything about this until approximately May 2007.  Petty Officer 1st Class Bradt was dishonest in that he did not inform his superiors of this activity.  He used his position as Kitchen Officer to have members of his section chop his firewood during normal work hours.  He is the only one that benefited from this activity as it is clear from the testimony of Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton that nothing was gained by them and to the contrary they all reacted quite negatively to that activity.  Petty Officer 1st Class Bradt seems to be the only one that never perceived any problems with that activity.  It is clear from the evidence accepted by this court that Petty Officer 1st Class Bradt intentionally used his office for a purpose other than public good.

With regards to charge No.6, the prosecution has provided no evidence on this element.  To the contrary, the evidence shows that Petty Officer 1st Class Bradt had signed a temporary loan card and had kept it in the section trailer.

[52]                  I will now deal with charges No.3 and No. 5.  An act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act.  The particulars of charge No. 3 read as follows:

"In that he, on or about 23 March 2007, at or near Ottawa, Ontario, did have firewood chopped by his subordinates at his residence during work hours."

The particulars of charge No. 5 read as follows:

"In that he, on or about 16 February 2007, at or near Ottawa, Ontario, did order a subordinate to purchase with public funds and deliver to his residence a propane heater and two propane tanks."

[53]                  The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

(a)  the identity of the accused as the offender and the date and place as alleged in the charge sheet;

(b)  that the accused deprived somebody of something of value;

(c)  that the accused used deceit, falsehood or other fraudulent means that caused the deprivation; and

(d) that the accused intended to defraud.

Concerning charge No.3, the identity of the accused is not in question in this charge.  The date and place of the offence has been admitted by the accused.

With regards to charge No.5, the identity of the accused is not in question in this charge.  While the particulars allege that the offence occurred on or about 16 February 2007, the evidence found at Exhibits 3 and 4 indicates that the propane heater and the two propane tanks were purchased on 23 February 2007.

[54]                  I will now deal with the second element of this offence, specifically that the accused deprived somebody of something of value.

For charge No.3, the accused was in charge of the food services section and he ordered that members of his section attend his residence on Friday 23 March 2007, so they could chop firewood.  He had CF personnel chop his firewood during working hours.  Even if one would accept that he did not sell the wood that was chopped that day, this still represents a situation where the accused benefited personally from their work.  Friday, 23 March 2007, was a normal working day for Petty Officer 1st Class Bradt, Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton.  They were paid by the Crown during that afternoon.  The Crown did not benefit from the work of Sergeant Pernitsky, Sergeant Sawyer and Corporal Newton that afternoon, Petty Officer 1st Class Bradt did.  The Crown was deprived of the value of one afternoon of work for each of these individuals.  The exact monetary value of this deprivation would be the cumulative amount of their pay for the period of time they had to devote to this wood chopping activity.

For charge No.5, although the evidence of Petty Officer 1st Class Bradt and Sergeant Pernitsky are at opposite end of the spectrum on the exact sequence of events pertaining to the purchase of the propane heater and of the two propane tanks and on how and why they were delivered to Petty Officer 1st Class Bradt's residence, both agree the purchase of this equipment was necessary and to the benefit of the section.  During his cross-examination, Sergeant Pernitsky testified that he did not see any problems with leaving the propane heater at Petty Officer 1st Class Bradt's residence so that Petty Officer 1st Class Bradt could test it and learn how to use it.  It would appear from his evidence that the propane heater and the tanks remained at Petty Officer 1st Class Bradt's residence from 23 February to mid-May 2007.  This equipment was brought to the section by the military police.  The section was deployed on an exercise during the month of April.  Petty Officer 1st Class Bradt did complete and sign a temporary loan card that indicated he had this equipment in his possession.

[55]                  It is clear from the evidence that the propane heater and tanks were bought for the use of the section.  It is also clear that they were not present at the section until returned by the military police.  What is not clear is the deprivation resulting from those facts.  Although the court wonders why the testing of this propane heater had to be done at Petty Officer 1st Class Bradt's residence and not at DHTC, it would appear from the evidence that this was not considered an anomaly by Sergeant Pernitsky.  The prosecution did not provide any specific evidence on this issue.  It would appear the section deployed on the exercise in April without this equipment and that it did not negatively affect the section.  Petty Officer 1st Class Bradt was not in a position to return the propane heater and tanks while he was deployed on exercise.  The court finds that the prosecution has not proven beyond a reasonable doubt that the CF was deprived of the propane heater and of the two tanks.

[56]                  I will now deal with the third element of this offence, namely that the accused used deceit, falsehood or other fraudulent means that caused the deprivation.

Defence counsel asserts that Petty Officer 1st Class Bradt did not force anyone to come chop wood and that there is nothing dishonest in this case, I refer to charge No. 3.  As stated in the case presented by defence counsel, that is R.v. Théroux [1993] 2 S.C.R. 5:

... To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence ... the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence.

This applies as much to the third head of fraud, "other fraudulent means", as to lies and acts of deceit. Although other fraudulent means have been broadly defined as means which are "dishonest", it is not necessary that an accused personally consider these means to be dishonest in order that he or she be convicted of fraud for having undertaken them. The "dishonesty" of the means is relevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable people consider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. That established, it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence.

Sergeant Pernitsky testified that the accused told him the sports afternoon had been approved by his chain of command.  Petty Officer 1st Class Bradt testified that he had sent an email to Master Warrant Officer Hanna informing him of this proposed sports afternoon.  Master Warrant Officer Hanna testified that he was never approached for his permission and that he was only informed of this sports afternoon after the exercise in British Columbia.  The court does not believe Petty Officer 1st Class Bradt's explanation.  The court does find that Petty Officer 1st Class Bradt was dishonest and that he tried to hide the wood chopping activity under the guise of a section sports afternoon knowing full well that he was doing this only to serve his personal purposes.

[57]                  Concerning charge No.5, Petty Officer 1st Class Bradt completed a temporary loan card, signed it and kept it in the food services section trailer.  Sergeant Pernitsky was aware of this loan card.  Sergeant Pernitsky and Petty Officer 1st Class Bradt testifed that it was common to sign for class C and class D equipment.  Petty Officer 1st Class Bradt did not try to conceal the fact that he had this equipment in his possession.  No deceit has been proven by the prosecution.

[58]                  Finally, I will deal with the intention to defraud.

Concerning charge No.3, it is clear from the evidence accepted by this court that Petty Officer 1st Class Bradt had one clear goal in mind; to have the members of his section come help him chop firewood on Friday, 23 March 2007, during working hours.  He did not advise his superiors of this plan.  His clear purpose was to use CF personnel during working hours for his personal benefit under the guise of a sports afternoon.

Concerning charge No.5, the prosecution has not provided this court with evidence that proves beyond a reasonable doubt that Petty Officer 1st Class Bradt wanted to defraud the CF by keeping the propane heater and the tanks at his residence.

[59]                  I will now deal with the final charge, charge No.7, conduct to the prejudice of good order and discipline.  The particulars of this charge read as follows:

"In that he, between September 2006 and May 2007, at or near Ottawa, while employed as the Kitchen Officer (KO) of his unit, did use subordinates to perform tasks for his personal benefit."

[60]                  The prosecution had to prove the following essential elements of this offence beyond a reasonable doubt:

(a)  the identity of the accused as the offender and the date and place as alleged in the charge sheet;

(b)  that the accused was employed as the Kitchen Officer of his unit;

(c)  that the accused intentionally used his subordinates to perform tasks for his personal benefit; and

(d) the prejudice to good order and discipline resulting from the conduct.

[61]                  For the reasons explained in charges number 2 and number 4, I find that the identity and the date and place of the offence and the position of Kitchen Officer as well as the use of subordinates to perform tasks for his personal benefit have been proven beyond a reasonable doubt.

[62]                  Justice Ewaschuk in R. v. Latouche (2000), 147 C.C.C.(3d) 420 (CMAC) characterized the offence of conduct to the prejudice of good order and discipline:

... [A]s a "result crime" inasmuch as the accused's underlying conduct must be prejudicial to good order and discipline....

[63]                  In R. v. Jones [2002] CMAJ No 11, the Court understood:

... Ewaschuk J to be saying that for a charge under subsection 129(1) to be made out, there must be proof of prejudice to good order and discipline since the subsection prohibits "conduct to" such a prejudice.

Proof of prejudice can be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act.  The standard of proof is proof beyond a reasonable doubt.

[64]                  Prejudice is not defined in the Queen's Regulations &Orders or in the National Defence Act.  The Queen's Regulations & Orders instruct us to use the Concise Oxford Dictionary in such cases.  Prejudice is defined as:  "harm or injury that results or may result from some action or judgement."

[65]                  The prosecution has not provided this court with evidence that demonstrates what prejudice was caused by the actions of Petty Officer 1st Class Bradt.  The court was told the section was quite busy, that the members of the section did not enjoy or benefit from the wood chopping afternoon.  The court was not provided with any evidence of any prejudice caused to the section or to the unit by the conduct of the accused.

[66]                  The prosecutor cannot just present a sentencing decision on a guilty plea before a Standing Court Martial and assume that another court martial may accept that sentencing decision as evidence of prejudice or as precedent on the issue of prejudice.  The sentencing decision of a court martial has no binding authority on any other court martial.  A statement that this charge is a "catch all charge" does not assist this court in any way.  Evidence is required to prove an essential element of the offence.

[67]                  I find that the prosecutor has not provided this court with the necessary evidence that would lead the court to conclude there was prejudice as a natural consequence of the proven conduct.  I find the prosecutor has not proven this last element of this offence beyond a reasonable doubt.

FINDING

[68]                  Petty Officer 1st Class Bradt, stand up.  Petty Officer 1st Class Bradt, the court finds you guilty of charges number 2 and number 4 and directs a stay of proceedings for charges number 1 and number 3.  The court finds you not guilty of charges number 5, 6 and 7.  You may sit down.

                                     LIEUTENANT-COLONEL J-G PERRON, M.J.

Counsel:

Major B. McMahon, Regional Military Prosecutions Western Area

Captain Drebot, Articling student, Directorate Military Prosecutions

Counsel for Her Majesty the Queen

Major A. Litowsky, Directorate Defence Counsel Services

Counsel for Petty Officer 1st Class Bradt