Courts Martial
Decision Information
Summary:
CMAC 494 - Appeal Dismissed
Date of commencement of the trial: 10 October 2006
Location: CFB Gagetown, F-1, Oromocto, NB.
Charges:
•Charge 1 (alternative to charge 2): S. 83 NDA, disobeyed a lawful command of a superior officer.
•Charge 2 (alternative to charge 1): S. 129 NDA, conduct to the prejudice of good order and discipline.
Results:
•FINDING: Charge 1: Guilty. Charge 2: A stay of proceedings.
•SENTENCE: A reprimand and a fine in the amount of $500.
Decision Content
Page 1 of 3 Citation: R. v. Corporal J.J. Kennedy,2006 CM 58 Docket: P200658 STANDING COURT MARTIAL CANADA NEW BRUNSWICK CANADIAN FORCES BASE GAGETOWN Date: 10 october 2006 PRESIDING: LIEUTENANT-COLONEL L-V d'AUTEUIL, M.J. HER MAJESTY THE QUEEN v. CORPORAL J.J. KENNEDY (Accused) DECISION RESPECTING A NO PRIMA FACIE APPLICATION BROUGHT PURSUANT TO QUEEN'S REGULATIONS AND ORDERS 112.05(13) (Rendered Orally) [1] Please be seated. [2] This is an application called a no prima facie case application brought pursuant to Queen's Regulations and Orders 112.05(13). That article reads as follows: (13) When the case for the prosecution [has] closed, the judge may, of the judge's own motion or upon the motion of the accused, hear arguments as to whether a prima facie case has been made out against the accused, and: (a) if the judge decides that no prima facie case has been made out in respect of a charge, the judge shall pronounce the accused not guilty on that charge; or (b) if the judge decides that a prima facie case has been made out in respect of a charge, the judge shall direct that the trial proceed on that charge. [3] This application, then, is brought at the conclusion of the evidence for the prosecution. The defence has not, at this stage, been put to their election as to whether or not they intend to call evidence in their defence.
Page 2 of 3 [4] A prima facie case is described in Note B to Queen's Regulations and Orders 112.05. The note reads as follows: (B) A prima facie case is established if the evidence, whether believed or not, would be sufficient to prove each and every essential ingredient such that the accused could reasonably be found guilty at this point in the trial if no further evidence were adduced. Neither the credibility of witnesses nor weight to be attached to evidence are considered in determining whether a prima facie case has been established. The doctrine of reasonable doubt does not apply in respect of a prima facie case ... [5] At this stage, therefore, an application under this provision will not succeed if there is some evidence with respect to each of the essential elements of the offence charged against the accused. The test to make a decision of this nature is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty as stated in United States of America v. Shephard [1977] 2 S.C.R. 1067, at page 1080, and confirmed in R. v. Mezzo [1986] 1 S.C.R. 802. Also, the burden of proof rests on the accused to demonstrate, on a balance of probabilities, that this test is met. [6] In the case before this court, the defence counsel raised two specific situations where it is suggested that the prosecution failed to introduce before this court, any evidence on an essential element. [7] First, on the first charge concerning the disobedience to a lawful command, the defence counsel raised the fact that there is no evidence on the essential element concerning the lawfulness of the order. To support his argument, he suggested this court to consider that the duty given to the accused as a duty driver was not a military one. I cannot agree with the defence counsel on this one. The evidence before this court disclosed that the Pipes and Drums Platoon was sent in Halifax, on temporary duty, for a period of two weeks, to perform at the International Tattoo. As stated by Warrant Officer Hughes, as a sergeant-major and person to the unit's SOP, "A duty driver was assigned in order to provide support contingency task, including driving back and forth the members of the unit, between the Dalhousie University and downtown Halifax that night," which is for a purpose connected with the welfare of troops while they are on temporary duty. That duty was specifically given to Corporal Kennedy. [8] The secondSSon the first and second charge, the defence counsel raised that there is no evidence that the lawful order, or the regulation, was breached because there is no evidence about the substance that was consumed that night by the accused. Again, I cannot agree with the defence counsel. Having reviewed the evidence heard by this court, I consider that the prosecution put before this court some evidence, when considered as a whole, that the substance identified by the witnesses, and consumed by
Page 3 of 3 the accused that night, contained alcohol. Then, I conclude that there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. I direct that the trial proceed on the two charges on the charge sheet. LIEUTENANT-COLONEL L-V d'AUTEUIL, M.J. Counsel: Major S.D. Richards, Regional Military Prosecutions Atlantic Counsel for Her Majesty the Queen Lieutenant-Commander M. Reeskink, Directorate of Defence Counsel Services Counsel for Corporal J. Kennedy
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