Courts Martial

Citation: R.  v.  Corporal T.M. Khadr, 2007 CM 2027

Docket: 200707

STANDING COURT MARTIAL

CANADA

ONTARIO

CANADIAN FORCES BASE PETAWAWA

Date: 21 September 2007

PRESIDING: COMMANDER P.J. LAMONT, M.J.

HER MAJESTY THE QUEEN

v.

CORPORAL T.M. KHADR

(Accused)

FINDING

(Rendered orally)

[1]                    With respect to finding, Corporal Khadr is charged, in the first charge, with an offence contrary to section 85 of the National Defence Act, that he behaved with contempt toward a superior officer; in that, on 1 August 2006, at Canadian Forces Base Petawawa, he pointed at Master Warrant Officer Brander and said, "Don't you fuck with me," or words to that effect.

[2]                    At the conclusion of the evidence, and following the addresses of both counsel, I found the accused not guilty on a second charge of causing a disturbance in the proceedings of a person presiding at a summary trial.

[3]                    The events alleged in the first charge arose immediately after the conduct of a summary trial of the accused on other charges that are not before me.  On those charges, he was found guilty by the presiding officer, Major Scott, and was sentenced to a fine of $300 and 8 days' confinement to barracks. 

[4]                    The prosecution at court martial, as at any criminal prosecution in a Canadian court, assumes the burden to prove the guilt of the accused beyond a reasonable doubt.  In a legal context, this is a term of art with an accepted meaning.  If the evidence fails to establish the guilt of the accused beyond a reasonable doubt, the accused must be found not guilty of the offence.  That burden of proof rests upon the prosecution and it never shifts.  There is no burden upon the accused to establish his or her innocence.  Indeed, the accused is presumed to be innocent at all stages of a prosecution unless and until the prosecution establishes, by evidence that the court accepts, the guilt of the accused beyond a reasonable doubt.

[5]                    Reasonable doubt does not mean absolute certainty, but it is not sufficient if the evidence leads only to a finding of probable guilt.  If the court is only satisfied that the accused is more likely guilty than not guilty, that is insufficient to find guilt beyond a reasonable doubt, and the accused must, therefore, be found not guilty.  Indeed, the standard of proof beyond a reasonable doubt is much closer to absolute certainty than it is to a standard of probable guilt.  But reasonable doubt is not a frivolous or imaginary doubt.  It is not something based on sympathy or prejudice.  It is a doubt based on reason and common sense that arises from the evidence or the lack of evidence.

[6]                    The burden of proof beyond a reasonable doubt applies to each of the elements of the offence charged; in other words, if the evidence fails to establish each element of the offence charged beyond a reasonable doubt, the accused is to be found not guilty.  The rule of reasonable doubt also applies to the issue of credibility.  If there is a reasonable doubt as to the guilt of the accused arising from the credibility of witnesses, the accused is to be found not guilty.

[7]                    The elements of the offence of behaving with contempt are: firstly, the identity of the accused as being the offender referred to in the charge; secondly, the date and place of the offence as particularized; thirdly, contemptuous behaviour on the part of the accused; fourthly, the behaviour must be directed toward a "superior officer" as that term is defined in section 2 of the National Defence Act; fifthly, a mental state on the part of the accused, that is, knowledge on his part at the time of the behaviour that the individual is a superior officer as defined; sixthly, and finally, another mental state on the part of the accused, that is, an intention on his part to engage in the contemptuous behaviour.

[8]                    There is no issue in this case as to the identity of the accused as being the person referred to in the charge, and the date and place of the alleged offence is conceded to be established.  The real issue in this case is whether the behaviour of the accused, at the time in question, was contemptuous.  I have been referred by counsel to dictionary definitions of contempt in the editions of the Concise Oxford Dictionary.  Contempt, in my view, is really a state of mind towards another person or thing, that that other person or thing is worthless or deserving of scorn.

[9]                    In this case, the state of mind of the accused toward Master Warrant Officer Brander is an inference to be drawn from the behaviour of the accused at the relevant time, considered in the context of the surrounding circumstances.  The evidence discloses that, at the conclusion of the summary trial, Major Scott engaged in what he called a re-motivation session with the accused.  This was largely an attempt to buck up the soldier by explaining the basis upon which he had been found guilty, urging him to alter his conduct so as to become a better soldier, and encouraging him in behaviours that would have that effect.

[10]                  I accept the evidence of both Major Scott and Master Warrant Officer Brander that during this time the accused became upset at this stage of the proceedings, accused Major Scott of not treating him fairly in finding him guilty, interrupted Major Scott repeatedly, and became argumentative with Major Scott.  The accused was raising his voice, and eventually was yelling.  Major Scott ordered him out of the office in strong terms that could not have been mistaken by the accused.

[11]                  Master Warrant Officer Brander accompanied the accused out of the office, down a short hallway.  Corporal Khadr continued what, by this point, had become a rant, stating that everyone was out to get him, and he started hitting things.  Major Scott described the accused, at this point, as having exploded, and he, Major Scott, was shocked by the behaviour of the accused.  Master Warrant Officer Brander tried to calm the accused down, using as loud a voice as the accused.  He told him, in strong terms, to be quiet, at which point the accused pointed at Master Warrant Officer Brander and stated, "Don't you fuck with me." 

[12]                  At this point the accused was a matter of some two paces away from Master Warrant Officer Brander, and his muscles were tightening as if to prepare for an attack.  Master Warrant Officer Brander then either called or ordered the calling of the military police to deal with the situation.  The accused calmed down when he was being dealt with by the military police.

[13]                  In my view, the behaviour of the accused toward Master Warrant Officer Brander, in the light of all the circumstances surrounding it, was certainly contemptuous.  He explicitly resisted the authority of Master Warrant Officer Brander by refusing to behave in a civilized manner.  His behaviour toward Master Warrant Officer Brander was part of a pattern of contemptuous behaviour towards others that included Major Scott.  I am satisfied beyond a reasonable doubt that the accused held Master Warrant Officer Brander in scorn or disdain as evidenced by his explosive outburst of temper.

[14]                  I should add, that although much of the argument before me by counsel was directed to the significance of the particular expletive used by the accused, which I accept is in especially common use in the ranks of the infantry, and no doubt elsewhere, I do not attach much importance to the use of this word.  It is, rather, the explicit resistance of the accused to the undoubted authority of Master Warrant Officer Brander, considered in the light of the surrounding circumstances, that impels me to the conclusion that the insubordinate behaviour of the accused was contemptuous of Master Warrant Officer Brander.

[15]                  There is really no issue that Master Warrant Officer Brander was a "superior officer," as defined, and I am also satisfied that the accused was aware that Master Warrant Officer Brander was superior to him in rank at the time of the behaviour.  Master Warrant Officer Brander was in uniform with his rank on his chest.  He had known the accused for a period of many months, and the accused explicitly recognized his authority over him when he, that is the accused, and others were briefed and exercised before the summary trial as to what was expected of them during the summary trial. 

[16]                  Finally, on all the evidence, I am satisfied that the accused intended to engage in the behaviours to which Master Warrant Officer Brander and Major Scott testified.  He is, therefore, guilty of the first charge.

                                                                                  COMMANDER P.J. LAMONT, M.J.

COUNSEL:

Major A.M. Tamburro, Regional Military Prosecutions Central

Counsel for Her Majesty the Queen

Major G.K. Duncan, Directorate of Defence Counsel Services

Counsel for Corporal T.M. Khadr