Courts Martial

Citation: R. v. ex-Major J.G.C.M. Rompré, 2008 CM 4010

Docket: 200818

STANDING COURT MARTIAL

CANADA

RÉGIMENT DE MAISONNEUVE

QUEBEC

Date: 22 August 2008

PRESIDING: LIEUTENANT-COLONEL JEAN-GUY PERRON, MILITARY JUDGE

HER MAJESTY THE QUEEN

v.

EX-MAJOR J.G.C.M. ROMPRÉ

(Accused)

FINDING

(Rendered orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    The accused, ex-Major Rompré, stands accused of one charge laid under section 127 of the National Defence Act. More specifically, he is accused of having willfully done an act in relation to things that may be dangerous to life or property, which act was likely to cause bodily injury to persons or damage to property. The particulars of this charge are as follows:

[translation]

In that, between 30 March 06 and 3 April 06, at the Farnham Training Centre, province of Quebec, while he was in charge of Exercise JULIEN‑BROSSEAU, he authorized the storage of pyrotechnics in an unauthorized area, namely a classroom in a building of the Farnham Training Centre.

[2]                    The evidence before this Court consists of the judicial notice taken by the Court of the facts and issues under Rule 15 of the Military Rules of Evidence and the testimonies of Corporal Vincent, Lieutenant Proulx, Corporal Nguyen, Warrant Officer Rodgers and ex-Major Rompré.

[3]                    Before this Court provides its legal analysis of the charge, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt, a standard that is inextricably intertwined with principles fundamental to all criminal trials.

[4]                    It is fair to say that the presumption of innocence is the most fundamental principle in our criminal law, and the principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence. In matters dealt with under the Code of Service Discipline, as in cases dealt with under Canadian criminal law, every person charged with a criminal offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until a verdict is given by the finder of fact.  

[5]                    The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. The burden or onus of proving the guilt of an accused beyond a reasonable doubt rests upon the prosecution, and it never shifts to the accused person. A court must find an accused person not guilty if it has a reasonable doubt about his or her guilt after having considered all of the evidence. The term "beyond a reasonable doubt" has been used for a very long time and is part of our history and traditions of justice. In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model charge to provide the necessary instructions as to reasonable doubt. The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far‑fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that a person has been charged is in no way indicative of his or her guilt.

[6]                    In R. v. Starr, [2000] 2 S.C.R. 144, the Supreme Court held that:

... 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....

[7]                    However, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the Court is satisfied or would have been satisfied that the accused is probably or likely guilty, then the accused would have to be acquitted, since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[8]                    What is evidence? Evidence may include testimony under oath or a solemn affirmation before the Court by witnesses about what they observed or what they did.  It could be documents, photographs, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the prosecution or the defence, and matters of which the Court takes judicial notice. It is not unusual that some evidence presented by the Court may be contradictory. Often witnesses may have different recollections of events. The Court has to determine what evidence it finds credible. Credibility is not synonymous with telling the truth, and a lack of credibility is not synonymous with lying. Many factors influence the Court’s assessment of the credibility of the testimony of a witness. For example, the Court will assess a witness’s opportunity to observe or a witness’s reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described, were the events noteworthy, unusual and striking, or relatively unimportant and therefore, understandably, more difficult to recollect? Does a witness have any interest in the outcome of the trial, that is, a reason to favour the prosecution or the defence, or is the witness impartial? This last factor applies in a somewhat different way to the accused. Even though it is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit a conclusion that an accused will lie where the accused chooses to testify.

[9]                    Another factor in determining credibility is the apparent capacity of the witness to remember. The demeanour of the witness while testifying is a factor that can be used in assessing credibility, that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant, or argumentative? Finally, was the witness’s testimony consistent with itself and with the uncontradicted facts?  Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious and may well taint the witness’s entire testimony.   The Court is not required to accept the testimony of any witness except to the extent that it has impressed the Court as credible. However, a court will accept evidence as trustworthy unless there is a reason rather to disbelieve it.  The full test as set out in the Supreme Court of Canada’s decision in R. v. W.(D.), [1991] 1 S.C.R. 742, can be applied because the accused, ex-Major Rompré, testified. As established in that decision, the test goes as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The evidence

[10]                  Exercise JULIEN-BROSSEAU took place at the Farnham Training Centre from Friday 31 March to Sunday 2 April 2006. Members of the Régiment de Maisonneuve were in charge of giving demonstrations of certain weapons and pyrotechnics to cadets from the Cadet Corps affiliated with the Régiment de Maisonneuve. Ex-Major Rompré was the officer in charge of the Régiment de Maisonneuve group, and Major Silva, an officer from the Cadet Instructor Cadre, was in charge of the Cadet Instructor Cadre officers and the cadets. Therefore, ex-Major Rompré was ultimately responsible for ensuring that the demonstration sites ran smoothly, and he was assisted in this task by certain officers and non-commissioned officers of the Régiment de Maisonneuve and other units. The group arrived at Farnham Friday evening, and the demonstration sites began Saturday morning. The unanimity of the witnesses regarding the facts ends at this moment.

[11]                  Throughout the morning on Saturday, a quantity of pyrotechnics were warehoused in the building being used as the quartermaster stores.

[12]                  Corporal Vincent was the hazardous materials driver for the exercise. He testified that he went to collect the ammunition and pyrotechnics from the unit’s ammunition cage Saturday morning, accompanied by Major Rompré and Second Lieutenant Proulx. He expressed some doubt at this moment in his testimony by adding [translation] “I think.” He also testified that he went to the headquarters of the C7 firing range with Second Lieutenant Proulx. He then stated that he was not certain which of the two people had told him to take the pyrotechnics out of his truck. Later, he declared that Major Rompré and Second Lieutenant Proulx had had a discussion on this matter and that ex-Major Rompré had wanted the pyrotechnics to be stored inside, whereas Second Lieutenant Proulx had suggested another option. He stated that he had expressed his disagreement with the two officers. According to Corporal Vincent, Major Rompré was inside the building when the pyrotechnics were transported inside. He does not know where in the building the boxes of pyrotechnics were placed.

[13]                  Corporal Vincent testified that Major Rompré was not present when the boxes of pyrotechnics were loaded into his truck by three or four people. He could not remember the identity or ranks of these people. He also testified that he did not participate in the loading except to ensure that the boxes were securely placed in his truck.

[14]                  Lieutenant Proulx testified that he was in charge of the pyrotechnics demonstration site. He testified that he had no specific duties on Saturday morning and that he went to the command post that morning. He planned out his site with Corporal Nguyen. He testified that he did not go to the ammunition cage that morning and that he did not even know where it was located.

[15]                  Lieutenant Proulx testified that his first involvement with the pyrotechnics occurred around late afternoon, not long before he departed for his site, when he saw the boxes of pyrotechnics on top of the C7 rack at the back of the quartermaster stores. He said he was unable to answer the prosecutor’s question regarding who had authorized storage of the pyrotechnics in that location. He was not asked to explain this last answer. Later, he indicated that the boxes of pyrotechnics were already in the quartermaster room upon his arrival.

[16]                  He was somewhat uncertain in his testimony as to whether or not ex‑Major Rompré was present in the quartermaster stores when the boxes of pyrotechnics were brought to the truck by Corporal Nguyen and himself.

[17]                  Corporal Nguyen was under the command of Lieutenant Proulx. He testified that he went to the command post around 0800 hours Saturday morning with Lieutenant Proulx. He did not see the pyrotechnics before receiving Lieutenant Proulx’s order to transport them to the truck. He testified, with some degree of uncertainty, that the pyrotechnics were not in the classroom, but rather two or three metres outside of this room. He testified that ex-Major Rompré was in the classroom when they transported the boxes of pyrotechnics to the truck. He indicated that Corporal Vincent and Lieutenant Proulx also carried boxes, although he expressed some doubts regarding  Lieutenant Proulx.

[18]                  Warrant Officer Rodgers, an ammunition technician, testified next. His testimony consists of technical statements regarding the ammunition and its storage.

[19]                  In his testimony, ex-Major Rompré described how he was appointed exercise director and the difficulties in terms of the shortage of personnel and equipment that plagued this exercise. He testified that he was required to travel from one demonstration site to another on Saturday morning to ensure that the exercise got off to a good start. The shortage of vehicles caused the greatest number of problems, since it forced the cadets to walk from one site to another. He testified that he did not go to the ammunition cage with Corporal Vincent on Saturday morning. He indicated that he did not know where the pyrotechnics were located on Saturday morning. He agreed that storing pyrotechnics in a classroom is potentially dangerous, and he was aware that the building in which the quartermaster stores were located was not to be used to store pyrotechnics.

[20]                  Given his supervisory activities in relation to the demonstration sites Saturday morning, he believes that he stopped by the command post only once that morning, and only for a few minutes. He did not see Corporal Nguyen at the command post that morning and did not remember if Lieutenant Proulx was there. He testified that no one told him that the pyrotechnics were in the classroom. The pyrotechnics were not his concern, as they were Lieutenant Proulx’s responsibility.

[21]                  I will now apply the test stated in R. v. W.(D.), cited above. Contrary to the military prosecutor’s claims, the Court does not consider, based on his answers in cross‑examination, that ex-Major Rompré’s credibility is called into question, that ex‑Major Rompré is attempting to exonerate himself or shirk responsibility by any means possible or that he gave implausible testimony. Ex-Major Rompré gave clear and precise explanations regarding his command style and the chain of command in place at the time of this exercise, as well as the nature and sources of his knowledge of handling weapons, ammunition and pyrotechnics.

[22]                  Ex-Major Rompré described a command situation in which, given the shortage of personnel and equipment, and the difficult weather conditions, he was required to focus his attention on ensuring the cadets’ security and coordinating the exercise. He stated that he consequently relied on his personnel to perform their duties according to the directives he had issued Friday evening. The prosecution has provided no evidence that can cast doubt upon this part of ex-Major Rompré’s testimony.

[23]                  The prosecution claims that Lieutenant Proulx, Corporal Vincent and Corporal Nguyen indicated that ex-Major Rompré was inside the building when the boxes of pyrotechnics were loaded into Corporal Vincent’s truck. It is clear from Corporal Vincent’s testimony that he did not see ex-Major Rompré at the time. Lieutenant Proulx showed some uncertainty regarding whether or not ex-Major Rompré was present during this activity. Corporal Nguyen testified that ex-Major Rompré was in the command post when they transported the boxes of pyrotechnics, although the boxes were not inside the command post at that moment, according to Corporal Nguyen.

[24]                  Given all of the evidence, the Court is of the opinion that ex-Major Rompré is a credible witness, and the Court believes his version of events. Therefore, in accordance with the first criterion in R. v. W.(D.), the Court must acquit ex-Major Rompré.

[25]                  The Court wishes to mention that, even had it not believed the version of the accused, the Court would have acquitted him, since the evidence provided by the prosecution failed to prove all the essential elements of the offence beyond a reasonable doubt. Lieutenant Proulx and Corporals Vincent and Nguyen are not considered to be credible witnesses. Each witness demonstrated uncertainty time and time again in his testimony, and there were many major contradictions throughout these testimonies. It is clear that this uncertainty and these contradictions are due to the witnesses’ faulty recollections. Corporal Vincent and Lieutenant Proulx’s testimonies completely contradicted each other regarding Lieutenant Proulx’s presence with Corporal Vincent Saturday morning, and Lieutenant Proulx’s version is supported by Corporal Nguyen’s testimony. Only Corporal Vincent implicates ex-Major Rompré in the decision to store the pyrotechnics, and he was uncertain in his testimony. The prosecution’s evidence would not have proven beyond a reasonable doubt that ex-Major Rompré had authorized storing pyrotechnics in an unauthorized area, either explicitly or implicitly.

[26]                  Ex-Major Rompré, for the reasons stated by the Court, the Court finds you not guilty of the charge.

                                                               LIEUTENANT-COLONEL J-G PERRON, M.J.

Counsel:

Major B. McMahon, Regional Military Prosecutions Western Region

Counsel for Her Majesty the Queen

Lieutenant(N) P.D. Desbiens, Director of Defence Counsel Services

Counsel for the accused, ex-Major J.G.C.M. Rompré