Courts Martial

Citation: R. v. Captain (Ret) M.R. Benoît, 2008 CM 1011

Docket: 200763

STANDING COURT MARTIAL

5 AREA SUPPORT GROUP

LONGUE-POINTE GARRISON

MONTRÉAL, QUEBEC

Date: April 9, 2008

PRESIDING: COLONEL M. DUTIL, CHIEF MILITARY JUDGE

HER MAJESTY THE QUEEN

v.

CAPTAIN (RET) M.R. BENOÎT

(Accused)

FINDING

(Rendered orally)

Introduction

[1]                    Captain (Ret) Benoît is charged with offences under paragraph 125(a) of the National Defence Act and with fraud under section 130 of the National Defence Act contrary to section 380 of the Criminal Code or, in the alternative, with committing an act of a fraudulent nature contrary to paragraph 117(f) of the National Defence Act. The various charges relate to allegations of false statements made by Captain (Ret) Benoît on general allowance claims between November 2005 and May 2006, as well as false statements made on accountable advance forms between April and May 2006. The charges involving acts of a fraudulent nature relate to allegations of illegal claims for about $14,500 in public funds between November 2005 and May 2006. These charges are mainly related to irregularities allegedly committed by Captain (Ret) Benoît under the Canadian Forces regime governing separation expenses for members for whom an imposed restriction has been approved by the competent authorities.

The evidence

[2]                    The evidence before this Court consists of the following:

1)  the matters of judicial notice under Rule 15 of the Military Rules of Evidence;

2)  all the evidence heard and filed with the Court in conjunction with defence counsel’s motion alleging a violation of the right to be tried within a reasonable time under section 11(b) of the Charter. The Court having dismissed the motion in question, the parties asked the Court to accept for the purpose of the trial all the evidence heard and filed during the motion proceedings;

3)  the exhibits filed with the Court, as follows:

a.   Exhibit 3 ­­ Defence admission.

b.   Exhibit 4 ­­ A posting message issued to Captain (Ret) Benoît.

c.   Exhibit 5 ­­ A separation expense claim dated July 18, 2005, signed by Captain (Ret) Benoît and authorized on July 19, 2005, by his senior officer.

d.   Exhibit 6 ­­ A safeguard order issued by the Superior Court of Québec on January 24, 2006, to Ginette Soucy and Captain (Ret) Mario Roch Benoît with safeguard measures, to which is annexed an interim agreement between the parties and Ms. Soucy’s counsel bearing the same date.

e.   Exhibits 7 to 13 ­­ CF 52s - General Allowance Claims for Separation Expenses - Imposed Restriction, filled out by Captain (Ret) Benoît and certified by the unit, to which are annexed the Requests for Accountable Advance of Public Funds, statements, receipts, and electronic statements related to the total amounts received by Captain (Ret) Benoît in the context of this case.

f.    Exhibits 14 and 15 ­­ Requests for Accountable Advance of Public Funds for the months of April and May 2006 by Captain (Ret) Benoît.

g.   Exhibits 16 to 19 ­­ E-mails between Master Corporal Vachon, a Signals Services clerk, and Captain Benoît.

h.   Exhibits 20 to 23 ­­ The exhibits filed in conjunction with the motion and transferred to the trial at the request of the parties and renumbered for this purpose.

i.    Exhibits 24 to 26 ­­ An exchange of e-mails between Captain Dubé, Adjudant, Signals Services, and Captain (Ret) Benoît, as well as an e-mail between Warrant Officer Gourde and Lieutenant-Commander Raymond on Captain Benoît’s file and his right to claim separation expenses.

4)  The Court also heard the testimony of the following people:

a.   Christian Blanchette, psychologist, as an expert witness on the treatment of patients suffering from psychological disorders related to stress and depression. Mr. Blanchette has been Captain (Ret) Benoît’s clinical psychologist since July 2007; he was heard on the motion, and his testimony has been transferred to the trial.

b.   Master Corporal Line Vachon, Staff Chief Clerk, 5 ASG, who was an administrative clerk with Signals Services during most of the period at issue in this case.

c.   Captain Sylvie Dubé, Adjudant, Signals Services, 5 ASG, since October 2000, head of administration and advisor to the unit commander on administrative and staffing issues.

d.   Warrant Officer Alain Gourde, Chief Clerk, Orderly Room, of the CHRM in Montréal from 2004 to 2007, responsible for, among other things, approving separation expenses claims with imposed restrictions for members of the Montréal garrison.

e.   Lieutenant-Colonel Claude Bergeron, Commander, Signals Services, 5 ASG, since June 2005, who was Captain (Ret) Benoît’s commanding officer during the events of this case until the accused was transferred to the service personnel holding list.

f.    Captain (Ret) Mario Roch Benoît, the accused in this case.

g.   Louise Dupuy, Department of National Defence social worker, who worked as Captain (Ret) Benoît’s advocate from October 2005 to July 2006.

The facts

[3]                    The facts relevant to this case begin with Captain (Ret) Benoît’s posting in June 2005 from 711 Communication Squadron at Valcartier to the Area Support Unit Montréal effective July 25, 2005. The posting message confirms that Captain (Ret) Benoît­ was entitled to an imposed restriction (IR), as requested by the military. This IR was approved until July 2007. The evidence indicates that shortly before this posting, he had been separated from his family for several months while working toward his officer certification, having previously held the rank of master warrant officer. I should note from the outset that Captain (Ret) ­Benoît was then suffering from post-traumatic stress disorder, undiagnosed in 2005, brought on by events in Bosnia in 1993, and that he had struggled with the disorder alone by throwing himself into his work and isolating himself from others, including his wife and children. He testified that he had temporarily separated from his wife in 1995 for a 10-month period following a posting in Saint-Jean-sur-Richelieu as a result of similar isolation behaviour.

[4]                    In July 2005, Captain (Ret) Benoît submitted his first allowance claims for separation expenses, which were approved by his superiors. On a Monday in about mid-October 2005, Captain (Ret) Benoît asked to see his commanding officer, Lieutenant-Colonel Bergeron, as quickly as possible. He knew the accused as a serious professional with considerable experience. The commanding officer agreed to see him in his office without an appointment. Captain (Ret) Benoît told him that he had just spent the weekend at his home in Val-Bélair in the Quebec City region with his wife and children and that it had not gone well: everything was falling apart. He told his commanding officer that his wife had kicked him out and that she wanted to end it with him. Lieutenant-Colonel Bergeron felt that Captain (Ret) Benoît had been seriously affected by the incident and was not in any shape to perform his duties normally. Captain (Ret) Benoît was in great distress and asked for help. Lieutenant-Colonel Bergeron told him to take all the time he needed to collect himself and seek the assistance he needed. Captain (Ret) Benoît was placed in the care of the medical authorities shortly thereafter and was granted sick leave. Lieutenant-Colonel Bergeron apparently had no more personal contact with Captain (Ret) Benoît after that date, except through medical or administrative staff regarding the state of his health during his extended sick leave which began November 1, 2005. Lieutenant-Colonel Bergeron nevertheless described another meeting with Captain (Ret) Benoît in June 2006 as part of a return-to-work program, during which the latter told him that his wife wanted to resume living with him, but that it did not seem to be his intention.

[5]                    After his meeting with Lieutenant-Colonel Bergeron, Captain (Ret) Benoît went to the medical clinic to meet with the social worker, Louise Dupuy. She said she had been approached by a friend of Captain (Ret) Benoît, Master Warrant Officer Daigneault, who was very worried about his health. Ms. Dupuy agreed to meet with Captain (Ret) Benoît right away, early in the morning of October 24, 2005. The man she encountered was crying a great deal and having difficulty talking and expressing himself. Captain (Ret) Benoît explained that he was cracking up. Ms. Dupuy said that she saw a man who was frightened, disoriented, confused, emotional and in a state of shock. She conducted an intervention meant to calm people in crisis. Ms. Dupuy had him verbalize his emotions in order to better understand his situation. She learned that Captain (Ret) Benoît’s wife wanted to separate and that he never saw it coming. Ms. Dupuy observed that he was exhibiting suicidal tendencies. She organized an intervention over the following hours and days. She formed a non-suicide pact with Captain (Ret) Benoît. She saw him daily from October 24, 2005, to November 1, 2005, except for three days that Captain (Ret) Benoît could not come because he was neither eating nor sleeping and was too weak to drive. He saw her twice that week accompanied by his mother. She said that she wanted him to see a physician for an assessment as soon as possible. Ms. Dupuy then asked Captain (Ret) Benoît to write down everything that crossed his mind and to send her e-mails verbalizing his emotions. Almost every day he wrote three to four pages on eight-and-a-half-by-eleven paper. Over the weeks and months that followed, she slowly began to understand that they might be dealing with post-traumatic stress disorder. She noted that Captain (Ret) Benoît was losing a lot of weight. In hindsight, she began to see why Captain (Ret) Benoît was so shaken up by his separation during their first encounter. She then realized that she could not help him alone and that he needed medical treatment. Ms. Dupuy brought him to see Dr. Cardin, the duty physician at the base medical clinic. Dr. Cardin became his attending physician. She added that in late November 2005 she had been in contact with Major Arguin, the accused’s supervisor, who told her that she wanted to communicate with Captain (Ret) Benoît but had been unable to do so. Ms. Dupuy agreed to the request with the consent of Captain (Ret) Benoît, and she communicated with Major Arguin in the presence of the accused. The evidence clearly shows that the accused’s chain of command had been instructed by the medical authorities not to contact Captain (Ret) Benoît during his sick leave as of November 2005 because of his extremely fragile mental health. Finally, Ms. Dupuy said that she observed a significant deterioration in the state of Captain (Ret) Benoît’s health in about June 2006. From July 2005 until May 2006, Captain (Ret) Benoît signed and submitted CF 52 General Allowance Claims for Separation Expenses and Requests for Accountable Advance of Public Funds, as can be seen from Exhibits 7 to 16.

[6]                    According to the evidence, Master Corporal Vachon processed Captain (Ret) Benoît’s separation expense claims starting in July 2005. Captain (Ret) Benoît would sign the forms in the orderly room according to standard procedure. However, the situation changed in November 2005, when Captain (Ret) Benoît ceased performing his duties and went on sick leave for the above-mentioned reasons, reasons not known to Master Corporal Vachon at that time. It was when Captain (Ret) Benoît and Master Corporal Vachon began exchanging e-mails on November 7, 2005, that the accused began asking hypothetical questions about the effect of a separation on his pension and other benefits. She sent him Internet links, particularly one indicating which documents the member must provide in the case of a change of marital status, which states that the member must submit the separation order to the military authorities, if applicable. With respect to the IR, she informed him that she was still waiting for information about changes to the system and instructed him to inform his chain of command about any change in his marital status. Captain (Ret) Benoît sent her another e-mail two weeks later asking when his IR would cease. He briefly explained that he was in the process of mediation and that he did not know when the official separation papers would take effect. Two days later, Master Corporal Vachon informed Captain (Ret) Benoît that the IR ceased to be in effect upon any change in the family situation. In addition to this vague information, she told him that she had to verify whether an official court document was required or whether a military memo would suffice. She added that Annex B, signed by Captain (Ret) Benoît, included a notice to the effect that the member recognized his obligation to inform his commanding officer of any changes to his family situation. She added, [TRANSLATION] “According to CFAO 209-3, ‘Entitlement to SE ceases the date a member ceases to have a dependant.’” Master Corporal Vachon also told him that according to her interpretation, it was not necessary to wait for the court’s decision unless he had custody of the children. Captain (Ret) Benoît replied to Master Corporal Vachon that he was still responsible for the hypothec on his house in Val-Bélair, that he still owned the house and that he still lived there. He added that he could not afford to pay two rents at once. Moreover, Captain (Ret) Benoît told the clerk that he was in no condition to undertake any action whatsoever according to his attending physician. He asked her what was meant by the expression “official document”: was it a document generated in the mediation process or by a lawyer, a court judgment, or a deed of sale of the property? Master Corporal Vachon’s response was as vague as ever: [TRANSLATION] “As long as you have dependants, you are eligible for the imposed restriction. The IR terminates when you no longer have any dependants. At that time, the member must inform his commanding officer.” In the same reply, she added, [TRANSLATION] “But as I was saying, as long as there is no change in your family situation, there is no need to change anything.” The evidence indicates that Master Corporal Vachon spoke on the telephone with Captain (Ret) Benoît during that period about the same issues. Master Corporal Vachon testified that she had never been informed by Captain (Ret) Benoît or anybody else of the accused’s precise family situation at that time. She did know that he was going through a difficult period with his wife and that he was no longer travelling to Quebec City every weekend, as he had indicated on his forms. Master Corporal Vachon knew that Captain (Ret) Benoît had been on sick leave since November 2005 and that he was seeing a social worker and a psychologist. She said she believed it was possible that Captain (Ret) Benoît had misunderstood her explanations, given that people regularly told her that the rules governing separation expenses [TRANSLATION] “might as well be written in Chinese!” She also added that since Captain (Ret) Benoît had gone on sick leave in early November 2005, she had been travelling to the base medical clinic herself so that he could sign the forms necessary for his separation expense benefits. He would sign the forms without even looking at them. Master Corporal Vachon does not believe that she provided him with a definition of “dependants.” Moreover, it seems that the information given to Captain (Ret) Benoît by Master Corporal Vachon in her last e-mail was incorrect, according to Captain Dubé. She never directly asked him whether he was separated; she felt uncomfortable with the idea of doing so because he was on sick leave and she did not want to make the situation any worse.

[7]                    There was very little change in the situation over the following months. Captain (Ret) Benoît was still on sick leave. Neither his immediate superiors nor the Adjudant, Signals Services, knew whether the accused’s separation was definitive. Of course there were suspicions, but nobody could confirm anything one way or the other. However, everybody knew that Captain (Ret) Benoît was on sick leave for mental health reasons and that the unit authorities were not to contact him because of his health. Various e-mails and requests sent between Captain Dubé and military human resources staff in January 2006 highlighted the obscurity of the rules governing separation expenses and imposed restrictions. With respect to the date of termination of the relationship, Captain Patrick Vincent wrote the following to Captain Dubé, in Exhibit 24 :

[TRANSLATION]

No, there is no black-and-white deadline. Some couples go through rough patches that last weeks, months or years. The member must be honest and the supervisor/management must not keep their heads in the sand.

She updated Captain (Ret) Benoît’s chain of command accordingly. Major Arguin tried in vain to contact the accused during this period, which she succeeded in doing after going through Ms. Dupuy, the social worker. Nobody came out and asked Captain (Ret) Benoît directly: Have you definitively separated from your wife, and who has custody of the children? The reason was simple and humanitarian, as Captain Dubé’s testimony makes clear: [TRANSLATION] “It was delicate for us! We had to handle the situation with kid gloves!”

[8]                    Captain Dubé also testified about a meeting she had had with Captain (Ret) Benoît at the medical clinic on or about April 5, 2006, before he met with the social worker, Ms. Dupuy; she had gone to see him so that he could sign a leave form, since he was still on sick leave. Captain Dubé took the opportunity to tell Captain (Ret) Benoît, for the first time, about the content of the e-mail she had received from Captain Vincent in January 2006. Captain (Ret) Benoît became defensive and told her [TRANSLATION] “My dependants are still my dependants.” She said that she had asked Captain (Ret) Benoît, for the first time, the date that his relationship had terminated. He responded that it had been October 23, 2005. Captain Dubé told him that that date could, and I stress the word “could,” be used to claw back separation expenses retroactively. She then added, [TRANSLATION] “We’ll check!” She added that Captain (Ret) Benoît objected to this on the basis of his understanding that the issue was the status of his “dependants.” She saw that there was no point discussing the matter further and left Captain (Ret) Benoît to his meeting with Ms. Dupuy. In short, in April, nothing was definitive and questions were still being asked. However, still in April 2006, Lieutenant-Colonel Bergeron requested a legal opinion on the issue because, according to the commanding officer, nothing was clear. Was the date of the change in family status the date that he and his wife had separated or the date of the separation judgment?

[9]                    Lieutenant-Colonel Bergeron testified that even after he had received the legal opinion, the answer was not clear, and it is still not clear today.

[10]                  On May 31, Captain Dubé, Warrant Officer Gourde and Captain (Ret) Benoît met in the office of the unit commanding officer, Lieutenant-Colonel Bergeron. The issue was once again the appropriate date for terminating the IR, if necessary, and the repayment of separation expenses received by Captain (Ret) Benoît. A case similar to his was described to him. According to Captain Dubé, it was at that moment that Captain (Ret) Benoît understood that he was not entitled to separation expenses. She then asked him if he wanted to continue receiving the payments and to sign the documents prepared by the administrative clerks. Captain (Ret) Benoît refused to sign the documents. She added that it was possible that Captain (Ret) Benoît told them at that meeting that he had understood that until there was a separation judgment, the separation was not considered definitive. Ms. Dupuy said that she had observed a serious deterioration in the state of Captain (Ret) Benoît’s health shortly thereafter, in June 2006. Captain (Ret) Benoît briefly attempted a progressive return to work, but his health had so deteriorated that he was transferred to SSU Montréal on the service personnel holding list. He has since been released from the Canadian Forces for health reasons, in particular for a disability related to post-traumatic stress disorder. Captain (Ret) Benoît asked on several occasions during this period to be provided with a copy of the guidelines applicable to his separation expenses. According to the evidence, this was to be provided to him, but he has yet to receive anything.

[11]                  Lieutenant-Colonel Bergeron’s testimony is unequivocal. In his view, this case was purely administrative in nature, and not disciplinary. In the worst-case scenario, he would have attempted to persuade Captain (Ret) Benoît that he was no longer entitled to separation expenses; he would have tried to reason with him. Never did it occur to him to have the military police investigate Captain (Ret) Benoît’s conduct. In short, Captain (Ret) Benoît’s case was, according to his commanding officer, Lieutenant-Colonel Bergeron, administrative rather than disciplinary. It was only after Captain (Ret) Benoît had been transferred to the service personnel holding list that his new commanding officer, Lieutenant-Colonel Richardson, commander of Staff Support Services at 5 Area Support Group, caused the nature of the issue involving Captain (Ret) Benoît to change and that the police were involved in the file, resulting in 11 criminal and disciplinary charges. No direct or indirect evidence has been presented to the Court to explain this reversal.

[12]                  Christian Blanchette, psychologist, was accepted by the Court as an expert witness, and he testified extensively about his many meetings with Captain (Ret) Benoît since summer 2007 about various psychological problems, including his post-traumatic stress disorder. It seems he has met with Captain (Ret) Benoît at least 35 times since the latter’s arrival in the Rouyn-Noranda region of Abitibi following his release from the Canadian Forces. Mr. Blanchette testified that Captain (Ret) Benoît had been suffering from post-traumatic stress disorder for many years following events that occurred in the former Yugoslavia around 1993. He also told the Court that Captain (Ret) Benoît was still suffering from a severe depression for which he was taking medication prescribed by a psychiatrist to control the symptoms. He explained that when he first met with Captain (Ret) Benoît in April 2007, his file indicated that, in August 2006, he was suffering from generalized anxiety disorder, post-traumatic stress disorder and severe depression. He also testified that he had observed that Captain (Ret) Benoît had literally ceased to function after learning about the two significant events that had marked him in recent years, namely, his wife’s decision to leave him and the criminal charges that are at issue in this Court Martial. This completes the summary of the evidence heard before this Court.

The applicable law and the essential elements of the charges

The 1^st and 2^nd counts (paragraph 125(a) of the National Defence Act)

[13]                  The first two counts are under paragraph 125(a) of the National Defence Act, namely, willfully making a false statement in an official document signed by him. On the 1^st count, in addition to the identity of the accused and the date and place as they are alleged in the charge, the prosecution had to prove the following beyond a reasonable doubt:

a)  Captain (Ret) Benoît willfully stated on the general allowance claim forms that there had been no voluntary separation, legal or otherwise;

b)  the general allowance claim forms were official documents;

c)  the act with which he is charged was committed with the knowledge that the information in the statement was false.

On the 2^nd count, in addition to the identity of the accused and the date and place as they are alleged in the charge, the prosecution had to prove the following beyond a reasonable doubt:

a)  Captain (Ret) Benoît willfully made false statements on the Requests for Accountable Advance of Public Funds, providing as a reason an imposed restriction;

b)  the Requests for Accountable Advance of Public Funds were official documents;

c)  the act with which he is charged was committed with the knowledge that the information in the statement was false.

The 3^rd count (section 130 of the National Defence Act contrary to paragraph 380(1)(a) of the Criminal Code)

[14]                  On the 3^rd count (section 130 of the National Defence Act contrary to paragraph 380(1)(a) of the Criminal Code) (in the alternative to the 4^th count), that he committed fraud, in addition to the identity of the accused and the date and place, the prosecution had to prove the following beyond a reasonable doubt:

a)  Captain (Ret) Benoît deprived Her Majesty of a sum of money;

b)  Captain (Ret) Benoît brought about the deprivation by deceit, falsehood or other fraudulent means;

c)  Captain (Ret) Benoît intended to commit fraud; and finally,

d) the subject-matter of the fraud was in excess of $5000.

Finally, on the 4^th count, namely, an act of a fraudulent nature not specified in sections 73 to 128 of the National Defence Act under paragraph 117(f) of the National Defence Act (in the alternative to the 3^rd count), in addition to the identity of the accused and the date and place, the prosecution had to prove the following beyond a reasonable doubt:

a)  Captain (Ret) Benoît claimed amounts totalling $14,482.54 from public funds;

b)  Captain (Ret) Benoît claimed the amounts with the intention of committing fraud; and finally,

c)  Captain (Ret) Benoît knew that he was not entitled to these amounts.

Presumption of innocence and reasonable doubt

[15]                  Whether for charges under the Code of Service Discipline before a military court or proceedings before a civilian criminal court involving criminal charges, an accused person is presumed to be innocent until the prosecution has proved his or her guilt beyond a reasonable doubt.

[16]                  This burden of proof rests with the prosecution throughout the trial. An accused person does not have to prove his or her innocence. The prosecution must prove each of the essential elements of a charge beyond a reasonable doubt.

[17]                  Proof beyond a reasonable doubt does not apply to individual items of evidence or different parts of the evidence; it applies to the whole of the evidence on which the prosecution relies to prove guilt. The burden of proof rests with the prosecution throughout the trial and is never shifted to the accused.

[18]                  A court must find the accused not guilty if it has a reasonable doubt as to his or her guilt, after assessing the whole of the evidence. The expression “beyond a reasonable doubt” has been used for a very long time. It is part of the history and traditions of our judicial system. In The Queen v. Lifchus (1997) 3 S.C.R. 320, the Supreme Court of Canada stated the manner in which reasonable doubt is to be explained in a charge to a jury. The principles in Lifchus have been applied in a number of subsequent appeals. Essentially, a reasonable doubt is not an imaginary or frivolous doubt. It may not be based upon sympathy or prejudice. Rather, it must be based on reason and common sense. It must logically be derived from the evidence or absence of evidence.

[19]                  In The Queen v. Starr (2000) 2 S.C.R. 144, at paragraph 242, Iacobucci J., writing for the majority, said the following: “...an 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.”  It is useful, however, to recall that it is virtually impossible to prove something with absolute certainty, and the prosecution is not required to do so. That kind of standard of proof does not exist in law. The prosecution must prove the guilt of Captain (Ret) Benoît only beyond a reasonable doubt.

[20]                  As I noted earlier, the appropriate approach to the standard of proof consists in assessing the evidence as a whole, and not assessing individual items of evidence separately. It is therefore essential to assess the credibility and reliability of the

testimony having regard to the evidence as a whole.

[21]                  The standard of proof beyond a reasonable doubt also applies to questions of credibility. The Court need not make a definitive determination of the credibility of a witness or group of witnesses. In addition, the Court need not believe the entire testimony given by a person or group of persons.

[22]                  If the Court has a reasonable doubt regarding the guilt of Captain (Ret) Benoît that is based on the credibility of the witnesses, it must acquit him. In this case, the Court is satisfied that the testimony as a whole was credible and reliable, with the exception of certain minor contradictions and hesitations that are fully understandable given the time that has passed since the facts related to the charges at issue in this Court Martial took place. All the witnesses testified frankly and directly, with the exception of Captain Dubé, who occasionally seemed hesitant, particularly with respect to her invitation to the accused to have supper with her and her partner so that the latter could talk to him in more detail about the divorce proceedings he had undergone a few years before. Despite certain hesitations and awkward explanations, her testimony was mostly credible and supported by the evidence as a whole. In short, the evidence is reliable and generally corroborated. It is the doubts and issues raised by the evidence that constitute the heart of the problem at the source of the charges before the Court Martial.

Issues

[23]                  From the outset, the essential elements of the offences concerning the identity of the accused and the date and place of the offences are not in dispute. The prosecution submits that the Court need only examine the elements involving the mens rea required for the various charges. The defence accepts this with respect to the 3^rd and 4^th counts, but argues that the actus reus has not been proved for the 1^st and 2^nd counts.

Decision

Analysis of the law in light of the facts

[24]                  The defence argues that when the offences alleged by the prosecution were committed, Captain (Ret) Benoît was in a state of deep psychological distress and was completely overwhelmed. It adds that Captain (Ret) Benoît’s entitlement to an imposed restriction and his right to claim separation expenses were not clear, noting that the situation remains unclear to this day. The defence argues that in the circumstances, the statements he made were not false, and that if they were—which the defence denies—Captain (Ret) Benoît did not intend to make false statements. It submits that the accused was clearly open and honest throughout the events in question. The issue was eligibility for the IR and the definition of the term “dependant,” and the interpretation of the separation expenses policy by the military authorities from his own unit right up to the managers of said policy. The defence submits that Captain (Ret) Benoît was constantly asking questions of his chain of command, namely, Master Corporal Vachon, Captain Dubé and Lieutenant-Colonel Bergeron. The defence argues that he requested the applicable guidelines and is still waiting to receive them, a fact confirmed by Captain Dubé.

[25]                  When questioned by the Court about the precise nature of the statements allegedly made by the accused in relation to the particulars of the 1^st count, the defence acknowledged that it had not asked that those particulars be furnished. The reason is very simple. The irrefutable evidence heard and presented to the Court leaves no room for doubt. The statements the accused is charged with making appear in Form CF 52—see Exhibits 7 to 13 in support of the 1^st count—are substantially different from the statements alleged in the particulars of the 1^st count. The statement contained in the paragraph entitled “CERTIFICATION AND ABATEMENT” of Form CF 52 is written as follows:

I certify that the amount of SE claimed has been expended by me; that I have a dependant as defined in QR&O 209.80(3), that there is no separation with intent during the timeframe on this claim...

Not only does the actus reus of the alleged offence differ from the proven facts as they appear on the very face of the statement signed so many times by Captain (Ret) Benoît, but this divergence fully supports the defence’s theory that Captain (Ret) Benoît sincerely believed that he was entitled to the separation expenses, especially since starting in November 2005, he would sign the forms without even reading them. In fact, even today there remains doubt in the mind of his former commanding officer. In other words, the prosecution has not proved its charge. The statement made by Captain (Ret) Benoît was broader and could not be separated from the fact that he had a dependant. Dividing this statement to keep the portion alleged by the prosecution in the particulars of the 1^st count and finding that the prosecution has proved the charge based on substantially different facts would be highly prejudicial to the defence in terms of a special finding in the context of this case because the entire sequence of events flows from the dispute over the status of the dependant in the imposed restriction policy as it applies to the right to receive separation expenses. It is a well-established principle in criminal law that the prosecution is bound by the particulars it alleges in support of a count, except for non-essential particulars. This principle is clearly expressed by the Honourable Mr. Justice E.G. Ewaschuk in Criminal Pleading and Practice in Canada, 2nd Edition, at paragraph 9:9010:

9:9010 General rule

Subject to the rule involving surplusage, or subject to an amendment, the Crown is bound by the essential particulars of the charge, i.e., the Crown must prove the material particulars it alleges in the count, or the charge will be dismissed for fatal variance between pleadings and evidence. However, non-essential particulars, e.g., as to time or place, need not be proved with precision and may be deemed to be surplusage.

The Court finds that the prosecution has failed to discharge its burden of proof in relation to the actus reus of the offence charged as described in the statement of particulars of the 1^st count.

[26]                  These comments also apply to the analysis of the essential elements of the 2^nd count because the prosecution alleges that Captain (Ret) Benoît falsely stated an imposed restriction (IR) as grounds for an advance of public funds. However, the evidence indicates that by the end of his meeting with Captain Dubé and Warrant Officer Gourde on May 31, 2006, he understood that there may have been a problem with respect to his entitlement to the benefit. He then told Captain Dubé—who had had the forms prepared anyway, despite being well aware of the dispute surrounding the right of the accused to maintain the imposed restriction—that he would no longer sign the forms until he was provided with appropriate guidelines. In this context, the statement was neither objectively nor subjectively false because of the dispute about the interpretation of the term “dependant.” Again, the prosecution has failed to discharge its burden of proof in relation to the actus reus of the 2^nd count with respect to the essential element that the statement be false.

[27]                  As for the analysis of the 3^rd and 4^th counts, the prosecution argues that the statements of the accused submitted to the Court, Exhibits 7 to 15, allowed him to obtain fraudulently amounts of more than $14,000 to which he was not entitled. According to the theory of the prosecution, the statements taken together constituted a deceit, falsehood or other fraudulent means to defraud Her Majesty of amounts of money. It relies in particular on the Supreme Court of Canada decisions in Théroux and Zlatic. Counsel for the prosecution submits that the evidence demonstrates the accused was reckless or wilfully blind, as defined by the Supreme Court in Sansregret, relying on the information provided to him by Master Corporal Vachon, Captain Dubé and his commanding officer that he was required to inform the unit of any change in his status. The prosecution even criticizes the accused for not taking further steps to clarify the situation, including seeking the opinion of people other than those in his chain of command who were qualified to deal with the issue. There is no legal basis for imposing such an obligation. The Court is of the opinion that the obligation to provide clear guidelines on the application of its policies and benefits belongs to the military institution through the chain of command.

[28]                  It is clear that the mens rea required for the offence of fraud is subjective. The test is whether the accused was subjectively aware of the possible consequences of the prohibited act or showed a reckless disregard for the possible consequences, and not whether he believed that the acts or their consequences were morally correct. The subjective conviction of the accused that there was nothing wrong with his conduct or that the victim would not be harmed provides no defence. In this case, the accused did not make any statements that he knew to be false, and he continually sought advice from his chain of command both orally and in writing despite the fragile state of his mental health. Not only is the Court not satisfied that Captain (Ret) Benoît committed a fraudulent act in the circumstances of this case, it is of the opinion that even if he did, the prosecution has not proved beyond a reasonable doubt that Captain (Ret) Benoît had the required specific intent to defraud Her Majesty in light of all the evidence. On the contrary, despite the growing doubts among the chain of command about Captain (Ret) Benoît’s entitlement to a separation expense allowance as a result of his family difficulties, everyone from the unit’s warrant officer to the commanding officer did everything they could not to confront the situation head on with him in order to avoid aggravating his psychological distress. The honest and sincere belief of the accused that he was legally entitled to the separation expenses allowance in his personal situation must be interpreted as a legitimate defence to the charge of fraud. No reasonable person would call the accused’s interpretation an act of dishonesty. Captain (Ret) Benoît’s interpretation of the application of the policy, in light of the official information provided to him and his repeated requests for a clear answer, was justified in the circumstances of this case, which included the state of the accused’s mental health throughout the period in question, which was known to the entire chain of command.

[29]                  The Supreme Court of Canada stated in R. v. Berntson, [2001] 1 S.C.R. 365—relying on the majority decision of the Court of Appeal for Saskatchewan—that the Crown was required to prove subjective knowledge of the alleged act or subjective knowledge that deprivation was a likely consequence of the act in order to obtain a conviction for fraud. In Berntson, the receipts submitted by the accused were false and he knew that he had not incurred the expenses claimed. The Court found that subjective knowledge of all the alleged acts had been established because the acts were committed by the accused or on his instructions. The accused was aware that he was submitting claims that would be paid from public funds and that if the true nature of the claims were revealed, the payment would be refused. According to the evidence heard in this case, the Court is not satisfied beyond a reasonable doubt that Captain (Ret) Benoît had such knowledge when he made the statements in question. The accused must receive the benefit of this doubt.

Disposition

[30]                  Captain (Ret) Benoît, please stand. The Court finds you not guilty of all the charges against you.

                                                                                            COLONEL M. DUTIL, C.M.J.

Counsel:

Lieutenant-Commander M. Raymond, Director Military Prosecutions, Eastern Region

Counsel for the Prosecution

Lieutenant(N) M. Létourneau, Director Defence Counsel Services

Counsel for Captain (Ret) M.R. Benoît