Courts Martial

Citation: R. v.  Sergeant M.A. Dilello, 2008 CM 2019

Docket: 200823                                                                                 

DISCIPLINARY COURT MARTIAL                             

CANADA

ONTARIO

CANADIAN FORCES BASE NORTH BAY                  

Date: 10 June 2008

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

HER MAJESTY THE QUEEN

v.

SERGEANT M.A. DILELLO

(Accused)

DECISION PURSUANT TO QR&O 112.05(13)

NO PRIMA FACIE CASE APPLICATION

(Rendered orally)

[1]                    I'm faced, essentially, with a joint application by both counsel that rests on the position that the evidence to this point is insufficient, at the close of the prosecution's case, to ask the panel to consider a question of guilt or innocence with respect to that charge.

[2]                    Queen's Regulations and Orders, article 112.05(13) states:

(13) When the case for the prosecution is 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]                    What is meant by a "prima facie case," is captured in Note B to the regulation, which, to my mind, succinctly states the current law that would apply on any criminal prosecution in a Canadian court.  The Note reads:

(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 determination.

[4]                    Having regard for the evidence which the court has heard to this point, I agree with the position taken by both counsel that the evidence is simply not of a character as would justify the further consideration of this panel with respect to the first charge. 

[5]                    Stand up, Sergeant Dilello.  This court finds you not guilty of the first charge.  You may be seated. 

COMMANDER P.J. LAMONT, M.J.

Counsel:

Major S. MacLeod, Regional Military Prosecutions Central

Counsel for Her Majesty the Queen                                                    

Lieutenant(N) S.C. Leonard, Directorate of Defence Counsel Services

Counsel for Sergeant M.A. Dilello