Courts Martial

 

 

COURT MARTIAL

 

Citation:  R v Barber, 2012 CM 1008

 

Date:  20120629

Docket:  201217

 

Standing Court Martial

 

Selfkant Kaserne

Geilenkirchen, Germany

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Captain M.A. Barber, Accused

 

 

Before:  Colonel M. Dutil, C.M.J.

 

 

FINDING

 

(Orally)

 

INTRODUCTION

 

[1]               Captain Barber was charged with two alternative counts for offences under section 130 of the National Defence Act.  The first charge alleged a contravention to section 253(1)(b) of the Criminal Code for the operation of a motor vehicle while the concentration of alcohol in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood.  After the prosecution had declared its case closed, counsel for the defence asked this court to find Captain Barber not guilty of that charge on the basis that the prosecution had failed to establish an essential element of the offence, through admissible evidence, i.e. that the concentration of alcohol in Captain Barber's blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood.  The court allowed the application of non prima facie and found Captain Barber not guilty of the first charge.

 

[2]               The second and remaining charge alleges that she operated a motor vehicle while her ability to do so was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code.  The events that led to these charges would have occurred on or about 4 July 2011, at or near Munich, Bavaria, Federal Republic of Germany.

 

THE EVIDENCE

 

[3]               The evidence before this court consists of the matters for which the court has taken judicial notice pursuant to section 15 of the Military Rules of Evidence, a document (Marked as Exhibit 3) containing a series of admissions made by the defence reduced in writing, an oral admission by the defence that the identity, the date and place alleged in the charges were not in issue at trial.  The evidence is completed by the testimonies of five witnesses, namely:

 

a.                   German Police Officer Stephanie Asam;

 

b.                  Doctor Bridgit Elizabeth Santjohanser, a physician working at the Institute of Forensic Medicine in Munich;

 

c.                   German Police Officer Ulrich Hebe;

 

d.                  Doctor Liana Dianela Paul, Head of the Laboratory at the Institute of Forensic Medicine in Munich; and

 

e.                   Petty Officer Second Class Sylvie Turcotte.

 

All witnesses called by the prosecution testified in the German Language assisted by an interpreter, whereas Petty Officer Turcotte testified in the French language.

 

The Facts

 

[4]               German Police Officers Asam and Hebe testified that during the night of 3-4 July 2011, they were performing their patrol duties in Munich.  Police Officer Asam was on professional practical training, whereas her colleague acted as her mentor.  Police Officer Hebe has performed police duties since 2004, including his training.  As they were patrolling, at approximately 0215 hours on 4 July 2011, they observed a motor vehicle with a foreign licence plate, a grey Mazda, circulating in front of them.  The traffic was rather quiet and the lighting conditions were normal as the streets were illuminated with ordinary street lights.  The Police Officers have no specific recollection of the weather conditions.  As they were within one or two car lengths of Captain Barber's (Gilchrist) vehicle, they decided to do a general vehicle check or traffic control on that car with no apparent reason, other than Police Officer Hebe's decision to do so.  They stopped the vehicle in front of the civic address located at #5 Semefelder Strasse at the junction of Schwanthaler Strasse.  This procedure is routinely used in Germany to make sure that a driver is fit to drive and the car is in proper functioning order.  They intercepted the accused vehicle using a light activated police sign located on the roof of the patrol vehicle, which said "STOP POLICE."  The grey Mazda moved to the right side of the street and stopped.  Police Officer Asam went to the passenger side and noticed that there were three persons in the vehicle, including the accused.  Police Officer Hebe went to the driver's side of the vehicle.  Police Officer Hebe asked the driver, Captain Barber (Gilchrist at the time of the interception), for the car registration as well as her driver's licence.  Police Officer Asam testified that the accused only had a Canadian driver licence.  However, Police Officer Hebe said that Captain Barber (Gilchrist) gave him only her Canadian Military Identification Card as well as her vehicle registration. He added that they later accompanied her to a hotel in Munich, where she ultimately gave them the information related to her driver's licence and her Canadian Passport en route to the Police Station #14 in Munich, after the blood sample was obtained.  At first, Police Officer Asam did not notice any sign of intoxication, but her colleague told her that the smell of alcohol emanated from the vehicle and requested a voluntary alcohol test from Captain Barber (Gilchrist).  The Police officers explained how the test would be performed and told Captain Barber (Gilchrist) that she would be allowed to drive if it gave negative results.  Police Officer Asam was responsible for processing the event, whereas her colleague was in charge of the case and to give the instructions.  According to Police Officer Hebe, Captain Barber (Gilchrist) was very nervous.

.

[5]               The German Police Officers stated that Captain Barber(Gilchrist) was secure and consented to the test, but told them that she wanted to phone and talk to Canadian Military authorities before subjecting to the test.  The police officers told her that this was not possible.  Police Officer Asam stated that she was at one or two arms length of Captain Barber (Gilchrist) and could smell of alcohol on Captain Barber's (Gilchrist) breath and that her eyes were glassy.  Captain Barber (Gilchrist) agreed to do the test.  Police Officer Hebe was standing close to her colleague, but Police Officer Asam did not remember on which side.

 

[6]               While standing between her car and the police vehicle, Captain Barber (Gilchrist) was informed as to the procedure required to do the test.  She attempted to blow into the Alco-test five or six times without producing any results.  The police officers Asam and Hebe testified that normally when the test is performed properly by blowing air into the mouthpiece for four to five seconds, the results are known immediately.  According to Police Officer Asam, the absence of results made no sense to them and they then had a suspicion that Captain Barber (Gilchrist) was driving her vehicle under the influence of alcohol.  The police officers decided to take Captain Barber to the Institute of Forensic Medicine Clinic in Munich to have a blood sample taken from her as they are allowed to do so under German Law.  Two other police officers drove the accused vehicle to a safe location.  Captain Barber (Gilchrist) was transported to the Institute of Forensic Medicine Clinic located within 800 meters from the place she was pulled over in the German Police Patrol Vehicle driven by Police Officer Hebe.  Captain Barber (Gilchrist) took place in the back seat on the left hand side of the vehicle. 

 

[7]               After stating that she had personally filled the administrative document in relation to this investigation, Police Officer Asam testified that she had written that reasons for the breath test failure were unknown, the only alcohol related sign mentioned in the document was the smell of alcohol and that she had not written that Captain Barber's (Gilchrist) eyes were glassy.  Police Officer Hebe only noticed the smell of alcohol on Captain Barber's (Gilchrist) breath.  According to the testimony of Police Officer Hebe, he only noticed that Captain Barber (Gilchrist) had glassy eyes at the Institute of Forensic Medicine Clinic, although he made no notes to that effect. 

 

[8]               When they arrived at the Forensic Clinic, Captain Barber (Gilchrist) tried to phone someone on her cellular phone.  When asked if she consented to the taking of blood samples, Captain Barber (Gilchrist) refused.  The Police vehicle parked in front of the clinic.  Police Officer Asam opened the left rear door to let Captain Barber (Gilchrist) exit the vehicle and they entered into the building shortly after.  Captain Barber (Gilchrist) was told that she had to provide the blood sample as they had a suspicion that she had been driving her vehicle while under the influence of alcohol.  Police Officer Asam testified that a doctor came and that forms were filled.  Captain Barber's (Gilchrist) measurements as to weight and height were taken by the police officer.  These forms are as follows:

 

            (1)        A Police Application to take blood sample; and

 

            (2)        A physician report.

 

[9]               Police Officer Hebe testified that once at the Clinic, Captain Barber (Gilchrist) kept requesting to call Canadian Forces authorities before she would consent to a blood probe being taken from her.  He confirmed with his superior that he could proceed with the taking of the blood probe by a physician, despite Captain Barber's (Gilchrist) refusal.  Police Officer Hebe ordered that a blood sample be taken from Captain Barber (Gilchrist) at 0246 hours.

 

[10]           The accused sat on a bench where a blood sample was taken at 0249 hours, approximately 35 minutes after the traffic control, by Doctor Santjohanser, the medical doctor on duty, in the presence of the police officers.  Doctor Santjohanser performs her duties at the Clinic since 1992 and they include the taking of blood samples of suspects involved in criminal investigation.  As part of her normal duties, she fills various forms with the information provided to her by normally a police officer and she takes the blood samples from the suspect.  Dr. Santjohanser testified that on a given night she may take 10 to 40 blood samples from different individuals.

 

[11]           Although Dr. Santjohanser did not remember taking the blood sample of Captain Barber (Gilchrist) on 4 July 2011, she refreshed her memory from the protocol that she had used that night.  According to her testimony, Captain Barber's (Gilchrist) mood was "dismissive" and "rejective."  She would have observed that Captain Barber had an unusual muscular tonus, particularly as she stepped on and off the scale when her weight and height measurements were taken, including some problems with her balance.  Dr. Santjohanser said that the information she was provided to that effect indicated that Captain Barber Gilchrist) weighed above 66 kilograms and measured 176 centimetres.  She added that she believed that Captain Barber' (Gilchrist) speech was slurred as it is related to the muscle tonus in the tongue.  However, she agreed that this observation is more problematic when the subject speaks a different language.  This statement is not corroborated in any way by the police officers involved in this case and it is contradicted by Petty Officer Second Class Turcotte who was the Canadian Forces Support Unit (Europe) Duty Officer that night, who spoke to Corporal Barber on the phone during that same period.

 

[12]           Dr. Santjohanser added that she also observed Captain Barber (Gilchrist), while the latter was unaware that she was being observed, having some problems when she got on and off the scale in relation to her balance.  Based on her observations, she believed that Captain Barber (Gilchrist) gave her the impression that she was under the influence of alcohol.  Dr. Santjohanser did not provide the basis for her opinions.  She did not explain for example, how long she observed Captain Barber (Gilchrist); what she meant by her statements; and to what degree or extent the described deficiencies appeared to her.  To no fault of her own, Dr Santjohanser was not asked to provide these elements and expand on them.  This is particularly important in the context that the police officers did not testify as to the presence of any of these signs of impairment while they were at the Clinic in the presence of Dr Santjohanser, or at any other time.  Dr. Santjohanser described the normal procedure for the taking of blood samples at the Institute of Forensic Medicine and how it was obtained from the person.  She stated that she obtained Captain Barber's (Gilchrist) blood sample at 0249 hours on 4 July 2011.  She then applied the particularized label in the name of Mary Ann Gilchrist, provided to her by a police officer, on the vacu-container and completed her report.  Finally, she would have taken the blood sample duly labelled in a secure fridge.  The sample would normally remain there overnight to be picked up the following morning for analysis at the laboratory.  While at the Clinic, Captain Barber (Gilchrist) did not eat or drink anything.  Police Officer Hebe further testified that, once arrived at the Clinic, Captain Barber (Gilchrist) was ultimately cooperative to provide the blood sample.  He added that she had calmed down and that her eyes were glassy.  Questioned by the defence concerning the form called "Temporary Suspension of Driver Licence" related to this specific case and completed on 4 July 2011, Police Officer Hebe confirmed that no information or mark had been added to the form with regard to specific elements included on it, except with regard to a smell of alcohol positively identified on the form.  There were no comments or marks with regard to the following listed elements: Alco-test; blood alcohol content, drug test, medication, lack of concentration/weaknesses in orientation, unsure gait, unclear speaking, and other abnormalities.  The form did not indicate whether Captain Barber (Gilchrist) had glassy eyes.

 

[13]           After the blood sample, Captain Barber (Gilchrist) was accompanied to the police station # 14 where she was further released at around 0400 hours on 4 July 2011, and that after the stop at a hotel in Munich.

 

[14]           Dr. Paul was accepted by the court as an expert witness in the field of forensic toxicology.  She is the Head of the Department for Forensic Toxicology and Alcohology at the Institute for Forensic Medicine in Munich and she has testified as an expert over 300 times in German Courts in the context of criminal offences involving previous consumption of alcohol or drugs, including motor vehicle offences.  She is not directly involved in the analysis of blood samples taken at the laboratory, nor did she supervise the work of the analysts, but she authorizes the release of the results from the laboratory.  Dr Paul was asked to provide her opinion based on two hypothetical scenarios.  In the first instance, she was provided with the results of a blood level content associated to the weight, the height and the sex of the donor Captain Barber (Gilchrist), as well as other related elements such as the fact that the time of the last drink of alcohol was unknown, but that the donor had not consumed alcohol after a specific time.  Applying a scientific formula, she converted the original result obtained in Promille to its equivalent in milligrams of alcohol per 100 millilitres of blood.  Applying the accepted scientific principles concerning the absorption and the elimination of alcohol, she extrapolated the results to the time period offered by the prosecution.  She further explained the physical and physiological effects of alcohol in the human body in the context of operating a motor vehicle, including the capacity to use the steering wheel, the brakes, the accelerator and changing gears.  She also explained how such a blood alcohol content would impair the ability of a person to operate a motor vehicle in relation to the specific deficiencies in someone fine or gross motor capacities.  The factual foundation of this hypothetical scenario was not ultimately proven by the prosecution.  It is important to note that the prosecution chose to close its case after the testimony of Dr Paul.  Nothing precluded the prosecution, after the testimony of the expert witness, to present additional admissible evidence, including the testimony of competent witnesses, which would have ultimately established a proper factual basis to support the hypothetical scenario given to the expert, particularly to the blood alcohol content of the sample given by Captain Barber (Gilchrist).  This decision falls within the domain of prosecutorial discretion and it is not for the court to make any additional remarks to that effect.

 

[15]           Dr. Paul was also asked to provide her opinion as to the accused ability to drive a motor vehicle, at 0215 hours on 4 July 2011, on the basis of the signs of impairment observed by Dr. Santjohanser at the Clinic.  In addition, she was asked to include in that premise that Captain Barber's (Gilchrist) breath smelled of alcohol and that her eyes were glassy at the time of the traffic control at 0215 hours and approximately 30 minutes later.  Dr Paul was not provided any details as to the signs of impairment.  Based on the information provided, she believed that a person with these symptoms was not in a position to drive a motor vehicle.

 

[16]           Petty Officer Second Class Turcotte was the duty officer at the time of the events and she spoke to Captain Barber on two occasions that night.  She stated that she talked to Captain Barber (Gilchrist) the first time at 0230 hours on 4 July 2011, when she was awoken by the call.  She informed Petty Officer Second Class Turcotte that she had been pulled over and that she wanted to talk to the military police.  Petty Officer Second Class Turcotte gave her the telephone number of a Sergeant Peterson and she obtained Captain Barber's own cellular phone number at that time.  Petty Officer Second Class Turcotte attempted to contact the military police without success and left a voice mail at Sergeant Peterson's home.  Shortly after, Petty Officer Second Class Turcotte spoke to Captain Barber again.  She explained to Captain Barber that she had been unable to contact the military police and that she had left a voice mail.  Captain Barber (Gilchrist) told her that she needed to talk to a lawyer.  Petty Officer Turcotte testified that at all times Captain Barber's speech was clear as well as her requests.

 

The Law and the Essential Elements of the Charge

 

The Second Charge (Section 130 of the National Defence Act ― Section 253(1)(a) of the Criminal Code)(Alternate to the first charge)

 

[17]           In order to find Captain Barber guilty of impaired operation of a motor vehicle, the prosecution must prove, in addition to the identity of the accused as the offender and the time and place of the offence as set out in the charge, each of these essential elements beyond a reasonable doubt that:

 

a.                   She operated a motor vehicle;

 

b.                  She intended to operate a motor vehicle after she had consumed alcohol; and

 

c.                   Her ability to operate a motor vehicle was impaired by alcohol.

 

The only issue in this case is impairment: has the evidence proven beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug.  The defence admits that Captain Barber operated and intended to operate a motor vehicle, a Mazda automobile, at the relevant time and place.  As stated earlier, is there sufficient credible and reliable evidence to establish beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol.

 

Presumption of Innocence and Reasonable Doubt 

 

[18]           The first and most important principle of law applicable to every criminal case, including proceedings under the Code of Service Discipline, is the presumption of innocence.  Captain Barber entered the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the prosecution satisfies the court beyond a reasonable doubt that she is guilty.

 

[19]           Two rules flow from the presumption of innocence.  One is that the prosecution bears the burden of proving guilt.  The other is that guilt must be proven beyond a reasonable doubt.  These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.  The burden of proof rests with the prosecution and never shifts.  Captain Barber does not have to prove that she is innocent.  She does not have to prove anything.

 

[20]           A reasonable doubt is not an imaginary or frivolous doubt.  It is not based on sympathy or prejudice against anyone involved in the proceedings.  Rather, it is based on reason and common sense.  It is a doubt that arises logically from the evidence or from an absence of evidence.

 

[21]           It is virtually impossible to prove anything to an absolute certainty, and the prosecution is not required to do so.  Such a standard would be impossibly high.  However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

 

[22]           It is not unusual that some evidence presented before a court may be contradictory.  Often witnesses may have different recollections of events.  The court has to determine what evidence it finds credible and reliable.  However, there is an important distinction between a witness whose evidence is both credible and reliable and a witness who appears credible but whose evidence is nonetheless unreliable.

 

[23]           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, a court will assess a witness's opportunity to observe; a witness's reasons to remember, like, 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 that accused chooses to testify.  However, the accused does not have to prove anything and he does not have to testify.

 

[24]           Another factor in determining credibility is the apparent capacity of the witness to remember.  The demeanour of the witness while testifying is a factor which 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?  However, the appreciation of the said factor must take into account the inherent and particular difficulties associated with the testimony of a witness through an interpreter such as this was the case here for each witness that was called by the prosecution.  Finally, a court would ask whether a witness's testimony was consistent within itself and with the uncontradicted facts.

 

[25]           Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded.  A court is not required to accept the testimony of any witness except to the extent it has impressed the court as credible. However, a court will accept evidence as trustworthy unless there is a reason to disbelieve it.

 

[26]           As the rule of reasonable doubt also applies to the issue of credibility, the court is not required to definitely decide on the credibility of a witness or a group of witnesses, nor does the court need not fully believe or disbelieve one witness or a group of witnesses. 

 

DECISION

 

Legal Analysis

 

[27]           It is an offence under section 253(1)(a) of the Criminal Code for a person to operate of a motor vehicle while that person's ability to operate a motor vehicle is impaired by alcohol or a drug.  The offence is made out if the evidence establishes beyond a reasonable doubt any degree of impairment of the accused's ability to operate a motor vehicle, ranging from slight to great, and that this impairment was by alcohol or a drug.  The offence of impaired operation of a motor vehicle is a general intent offence: Penno (1990), 59 CCC (3d) 344 (SCC) at page 18.  The mens rea is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug.  The actus reus is the act of driving of a motor vehicle when the voluntary consumption of alcohol or a drug has impaired the ability to drive: Toews (1985), 21 CCC (3d) page 24 (SCC) at 29.  Stellato, [1993] OJ 18 (CA) at page 14, adopted by the Supreme Court of Canada [1994] SCJ 51 at page 1.

 

[28]           In Graat, [1982] 2 SCR 819 at 825, Dickson, J, as he then was, approved what Howland, Chief Justice of Ontario said at (1980), 17 CR (3d) page 55 (OCA) at page 69, 70:

 

To testify that a person is impaired is really tantamount to saying "I don‘t think that he should have been driving".  In each case, the opinion must be based on observed facts: the car was weaving back and forth across the road, there was a strong odour of alcohol on the driver's breath, his powers of perception and coordination were poor, he was drowsy and was not reacting quickly to other cars or pedestrians in the path of his car, and so on.

 

[29]           Turning to the facts of the case at bar, the German Police Officers decided to do a traffic control on the car operated by Captain Barber at 0215 hours on 4 July 2011, in the city of Munich, Germany.  Before the traffic control described earlier, the police officers had not seen or noticed any erratic or bad driving.  However, the prosecution does not have to prove a marked departure from normal driving behaviour, or even improper driving.  A person's ability to drive may be impaired by alcohol even though there is no evidence of bad driving.

 

[30]           After the police officers had pulled over Captain Barber's vehicle for their traffic control, they both noticed that an odour of alcohol was coming out of the vehicle and they confirmed that Captain Barber's (Gilchrist) breath smelled of alcohol.  Police Officer Asam testified that her eyes were glassy.  They did not notice any other sign of impairment, nor did they say how strong or light was the smell of alcohol or how glassy Captain Barber's (Gilchrist) eyes were at the time.  The court draws no inference from the failure of Captain Barber (Gilchrist) to provide any result after she had made five or six attempts to blow in the roadside Alco-test administered by the police officers, in absence of any evidence that the device was functioning properly.  The testimony of Police Officer Hebe that such thing did not happen earlier is not evidence of the proper functioning of the device nor does it constitute evidence of impairment of Captain Barber in absence of more details.   

 

[31]           The most significant evidence that relates to the signs of impairment displayed by Captain Barber (Gilchrist), during the night of 4 July 2011, are found in the uncorroborated and largely unexplained testimony of the physician who took a blood sample from her at 0249 hours, Dr. Santjohanser, who testified that she believed that her abilities were impaired by alcohol at the time.  It is based on that evidence that Dr. Paul, the expert witness, believed that Capt Barber's (Gilchrist) ability to operate a motor vehicle was impaired by alcohol approximately 35 minutes earlier.

 

[32]           This court is concerned with the frailty of the evidence heard during the court martial.  In addition, the fact that the evidence was relayed through an interpreter, which was difficult at times, enhances the difficulties concerning its reliability.  The court is also concerned with the absence of corroboration in the testimony of the two police officers who were with Captain Barber (Gilchrist) at all times to support the testimony of Dr. Santjohanser with regard to the signs of impairment noticed while they were all at the Clinic, although corroboration is not required..  Also, the opinion expressed by Dr. Santjohanser that Captain Barber's (Gilchrist) speech was slurred, if unnoticed by the police officers, is contradicted by the testimony of Petty Officer Second Class Turcotte who spoke to Captain Barber on two occasions within a few minutes during that period.  Finally, the statement made by Dr. Santjohanser that Captain Barber (Gilchrist) was "dismissive" and "rejective" must be interpreted in light of the version of events given by the police officers that Captain Barber (Gilchrist) was very nervous and that she did not want to provide a blood sample before she could phone to Canadian military authorities.  In the context, the court does not consider this behaviour as a sign of impairment.

 

[33]           The court did not break up the evidence and analyse every sign of impairment in isolation to reach its conclusion.  Such an approach would not only be inappropriate, but improper.  It has examined the signs of impairment revealed by the evidence in the context of the totality of the evidence and the absence of evidence with regard to the degree of these signs of impairment and the reasons supporting these observations.

 

[34]            It does not require medical training to assess the sobriety of a person.  There is no logical explanation that would have precluded two police officers, one of them with significant experience, to make the same observations as Dr. Santjohanser and to form the opinion, not a suspicion, that Captain Barber's (Gilchrist) abilities were impaired by alcohol when they were all present together at the clinic.  The police officers only noticed a smell of alcohol on her breath and glassy eyes, however they did not provide, nor were they asked to do so, any details with regard their degree.

 

[35]           In these circumstances, it is reasonable to only consider the cumulative effect of the signs of impairment that the court considers established by the evidence that it accepts as credible and reliable.  It is not an offence to operate a motor vehicle after drinking alcohol.  It is an offence to operate a motor vehicle if the consumption of alcohol impairs a person's ability to operate that vehicle.  The critical time is the time of the driving.  It is not when the alcohol was consumed or after the driving was over or when a blood sample was taken.  In light of the totality of the evidence, it is my conclusion that it does not provide an adequate evidentiary basis to accept the conclusion expressed by Dr. Paul that Captain Barber (Gilchrist) was operating a motor vehicle while her capacity was impaired by alcohol at 0215 hours on 4 July 2011.   

 

[36]           The prosecution has established that Captain Barber (Gilchrist) is likely to have operated a motor vehicle while her ability to do so was impaired by alcohol; however the evidence that relates to impairment is weak to the point that it raises a reasonable doubt that must benefit the accused.  

 

Conclusion and Disposition

 

FOR THESE REASONS. THE COURT:

 

[37]           FINDS you, Captain Barber, not guilty of the second and only remaining charge.

 

 

Counsel:

 

Major E. Carrier, Canadian Military Prosecution Services

Counsel for Her Majesty the Queen

 

Major C.E. Thomas, Directorate of Defence Counsel Services

Counsel for Capt M.A. Barber