Courts Martial

COURT MARTIAL

Citation:  R v Williams, 2011 CM 2008

Date:  20110506

Docket:  201171

Standing Court Martial

Canadian Forces Base Stadacona

Halifax, Nova Scotia, Canada

Between: 

Her Majesty the Queen

- and -

Master Corporal D.J.G. Williams, Accused

Before:  Commander P.J. Lamont, M.J.

REASONS FOR FINDING

(Orally)

[1]               Stand up please, Master Corporal Williams.  This court finds you not guilty of the first charge.  You may be seated.

[2]               Master Corporal Williams is charged with two offences under the National Defence Act, charged in the alternative.  In the first charge, a charge of assault; and in the second, a charge of fighting with another person subject to the Code of service discipline.  At the conclusion of the case for the prosecution, I accepted the submission that there was no prima facie case on the fighting charge, and therefore, found Master Corporal Williams not guilty on the second charge.  These reasons deal only with my finding of not guilty as to the assault charge.

[3]               The prosecution at court martial as in 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.  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 upon sympathy or prejudice; it is a doubt based upon reason and common sense that arises from the evidence or the lack of evidence.  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.

[4]               The rule of reasonable doubt applies to the credibility of witnesses in a case, such as this case, where the evidence discloses different versions of the facts that bear upon the issues.  Arriving at conclusion as to the facts of the case is not a process of preferring one version given by one witness over the version given by another.  The court may accept all of what a witness says as the truth or none of what a witness says, or the court may accept parts of the evidence of a witness as truthful and accurate.  If the evidence led on behalf of the accused as to the issues or the important aspects of the case is accepted, it follows that he is not guilty of the offence.  But even if that evidence is not accepted if the court is left with a reasonable doubt, he is to be found not guilty.  Even if the evidence on behalf of the accused does not leave the court with a reasonable doubt, the court must still look at all the evidence it does accept as credible and reliable to determine whether the guilt of the accused is established beyond a reasonable doubt.

[5]               The first charge particularizes that Master Corporal Williams "Between July 2008 and August 2008, at or near Land Force Atlantic Area Training Centre, Aldershot, Nova Scotia, did commit an assault upon Corporal J.L. Amiro."  The evidence for the prosecution consisted of the testimony of Corporal Amiro.  She testified that she and other persons were socializing in a room in barracks.  Master Corporal Williams arrived and began talking with friends in the room.  Corporal Amiro was seated on one of the two beds in the room when Master Corporal Williams approached her, picked her up off the bed by the shoulders and arms, threw her on to the floor and struck her on her head and thigh.  Master Corporal Williams then left the room.  Shortly afterwards, Corporal Amiro told Master Corporal Lambert what had happened.  Within a day or two, Master Corporal Williams apologized to Corporal Amiro saying he could not remember what happened.  Corporal Amiro agreed that her recollection of the event is vague and for parts of the event, very vague.  She could not recall the date of this event with precision but dates it to the end of July or early August of 2008.  Her evidence was that a number of other people were present in the room at the time, perhaps as many as six or seven, including Master Corporal Williams and herself.  She is fairly certain that both Corporal Smallwood and Corporal Faubert were present.

[6]               Having had the opportunity to watch Corporal Amiro as she gave evidence, I am satisfied that she was genuinely attempting to recall and relate the events of which she spoke to the best of her ability.  However, for the following reasons I find I am not persuaded beyond a reasonable doubt by her evidence that matters unfolded in the manner to which she testified.  At many points in her evidence both in chief and in cross-examination, Corporal Amiro answered that she could not recall.  Some of those matters are of lesser significance, but her recollection also failed her on some matters I regard as important, for example, as to how much alcohol she had to drink, whether Master Corporal Williams said anything to her at the time and what level of force was used against her.  On 9 August 2008, she took a photograph with a cell phone of a bruising injury to her thigh which she states was caused by being struck by Master Corporal Williams, but her evidence does not answer the question of when the striking occurred in relation to the date of the photograph.  I do not know from the evidence how old the bruise was at the time the photograph was taken nor does it appear that Corporal Amiro knows.

[7]               Both Corporal Smallwood and Master Corporal Faubert gave evidence for the defence.  Both corroborated the evidence of Corporal Amiro that they were present in the room with Corporal Amiro and Master Corporal Williams, but neither of them saw the attack described by Corporal Amiro.  I accept the evidence of both defence witnesses.

[8]               The prosecution argues that neither Corporal Smallwood nor Master Corporal Faubert were paying attention to what happened when Master Corporal Williams was in the room and that is why they did not see the attack that Corporal Amiro describes.  I do not accept this submission.  The room was relatively small and there does not appear to be anything that would have obstructed anyone's view of what was going on in the room.

[9]               I remind myself that the burden of proof rests with the prosecution.  On all the evidence, I cannot say that I am satisfied beyond a reasonable doubt that Master Corporal Williams assaulted Corporal Amiro.

FOR THESE REASONS, THE COURT:

[10]           FINDS the accused not guilty of the first charge.

Counsel:

Lieutenant-Commander D.T. Reeves, Canadian Military Prosecution Services

Counsel for Her Majesty the Queen

Lieutenant-Colonel T. Sweet, Directorate of Defence Counsel Services

Counsel for Master Corporal Williams