Courts Martial

Citation: R. v.  Master Corporal D.  Carr, 2006 CM 06

Docket:F200606

STANDING COURT MARTIAL

CANADA

ONTARIO

1ST HUSSARS LONDON

Date: 5 April 2006                                       

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

HER MAJESTY THE QUEEN

v.

MASTER CORPORAL D.  CARR

(Accused)

FINDING

(Rendered orally)

[1]                                       Master Corporal Carr, this court finds you not guilty on charge No. 1, not guilty on charge No. 2, not guilty on charge No. 3, not guilty on charge No. 4.  You may break off and be seated beside your counsel.

[2]                    Master Corporal Carr is charged with four charges:  a charge of extortion, contrary to section 346(1.1) of the Criminal Code, in that he threatened the complainant to induce her to provide sexual favours; or, alternatively, that he ill-treated her as a subordinate by making such threats; a third charge of assault, contrary to section 266 of the Criminal Code; and, alternatively, a charge of ill-treatment of a subordinate by touching her knee with his hand.

[3]                    The events giving rise to these charges occurred in a taxi on the way back to Camp Borden following a course party in August of 2004.  The complainant was accompanied by her friend, then-Private, now Mr Bellman.  The accused joined them in the back seat of the taxi.

[4]                    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.

[5]                    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.

[6]                    But reasonable doubt is not a frivolous or imaginary doubt.  It is not something based on sympathy or prejudice.  It is a doubt based on 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.

[7]                    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 important facts that bear directly upon the issues.  Arriving at conclusions 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.

[8]                    For several reasons, I have difficulties accepting some parts of the evidence of the complainant.  She testified in examination-in-chief that the accused touched her inappropriately during the course of the taxi ride back to Borden, and she must have told the accused a hundred times not to touch her.  In cross-examination, she testified that when the accused touched her inappropriately, she removed his hand on these occasions and that this occurred two or three hundred times.  Both counsel agree that this must be taken as an exaggeration.  I agree, but to my mind it demonstrates a certain carelessness with the truth that undermines the credibility of the complainant or the confidence that the court can have in the reliability of her evidence.

[9]                    She gave inconsistent versions of what happened in the taxi, both to her course mates and to the police investigators.  She freely admitted making what she claims are mistakes of fact in her statements to the investigators.  She was, at times, careless with the truth when answering the questions of the investigators.  The complainant agreed with the suggestion in cross-examination that the accused was a good section commander and driver instructor on the course, and that she and the accused had a good relationship.  But I accept the evidence of Corporal Robinson that the complainant said to her that she didn't like the accused because he had caused her some trouble during inspections.

[10]                  I believe that the complainant has some animosity toward the accused that preceded the events described in the charges, and that this animosity has coloured her perception of some events.  But I do not accept the submission of the defence that the complainant and Mr Bellman conspired to falsely accuse Master Corporal Carr.  In my view, the theory that Master Corporal Carr returned to Camp Borden from Owen Sound on his own, based largely, as it is, upon the timings given by different witnesses for the events overnight 17 to 18 August 2004, is entirely speculative.  I accept the evidence of the complainant and Mr Bellman that the accused did, indeed, accompany them back to Borden in their taxi.                                                                      

[11]                  I accept the evidence of Corporal Wilkinson and Corporal Witoslawski when they both contradict the evidence of the complainant that they were "making out" with the accused on the couch in the Smuggler's Bar.  Either the complainant misperceived this event or she misled the investigators with her description of it.  Either conclusion affects the weight and the reliability that the court can attach to her evidence.

[12]                  I accept the evidence of Corporal Witoslawski that she was not upset with the attention she received from the accused.  And I find that the complainant also misperceived Corporal Witoslawski's reaction when she; that is, the complainant, claimed that she pursued the matter of charges against the accused because of how the accused was treating women generally or might treat women in the future.

[13]                  As to the charge of assault, the prosecution points to the evidence of the complainant as to the repeated touching of the complainant on the leg area during the taxi ride.  There is no doubt that if there were touching, it was without the consent of the complainant, and, therefore, could constitute an assault.  But I am not satisfied beyond a reasonable doubt that the touching, as alleged, occurred.  Mr Bellman saw nothing that could amount to non-consensual touching of the complainant by Master Corporal Carr although he was seated right beside the complainant, but he does remember Master Corporal Carr having his left arm stretched across the back of the back seat of the vehicle.  He; that is, Mr Bellman, would, therefore, have been in a good position to see any non-consensual touching of the complainant if it had happened.  I find the accused not guilty on charge No.  3.

[14]                  The prosecutor agrees that the mistreatment alleged in charge No. 4 is the assaultive behaviour alleged in charge No. 3.  Since I have found the accused not guilty of assault, it follows that he is also not guilty of ill-treatment of a subordinate as charged in the fourth charge.

[15]                  As to the charge of extortion, as charged in charge No. 1, the elements of the offence of extortion are:

(1)       an inducement of the complainant by the accused to do something;

(2)       the use of a threat as an inducement;

(3)       an intention on the part of the accused to obtain something by the making of the threat; and,

(4)        a lack of any reasonable justification or excuse for the conduct of the accused.

[16]                  It is not necessary for a victim of extortion to capitulate to the wishes of the extortioner in order for the offence to be committed.  But it is obvious that if the victim does capitulate, that may support a reasonable inference that the victim was induced to act in that manner by reason of the threat made by the accused, and that the accused intended the threat to have the effect of influencing the behaviour of the complainant.  A threat is simply the communication of an intention to do harm.  And, in law, to constitute a threat there must be an intention on the part of the communicator that the threat be taken seriously.  I agree with the submission of counsel for the prosecution that the use of a threat to induce a complainant to engage in sexual activity amounts to the offence of extortion.  In this case, the complainant did not engage in sexual activity with the accused, but, as I have stated, it is not necessary for the offence to be completed that the threat should be effective or have the effect desired by the extortioner. 

[17]                  In the present case, both the complainant and Mr Bellman gave evidence as to what the accused said to the complainant in the taxi on the way to Borden that could amount to a threat.  Mr Bellman stated that the accused told the complainant he could make things difficult for her if she didn't have sex with him.  He said he could get her in trouble with a trumped-up charge under military law.  The complainant testified that the accused said if she didn't sleep with him he could cause trouble because he was a section commander.  He could fail the complainant off the course by means of red chits and could cause her a lot of trouble during inspections.

[18]                  I consider that any one of these statements, considered in context, could amount to a threat in law, but I am unable to accept the evidence of either the complainant or Mr Bellman as to the terms of the threats alleged.  Both witnesses seem to be giving very different accounts of the same transaction.  Mr Bellman testified as to threats which had nothing to do with the complainant's prospects of successfully completing the course, but the complainant's evidence of threats appears to me to be unconnected with the threat of false charges to which Mr Bellman referred.  The threats to which the complainant testified are related to the respective positions of the accused and the complainant in the military hierarchy, but the threats as alleged by Mr Bellman do not have that character.

[19]                    I have not simply considered these individual utterances attributed to the accused in isolation.  I have considered them in the context of the relationships between the two witnesses and the accused, and the circumstances in which they were made.  Those circumstances include the fact that the accused was severely intoxicated by alcohol at the time of the statements attributed to him.  On all the evidence, I am not satisfied that a threat has been established beyond a reasonable doubt, and the accused is, therefore, not guilty of the offence of extortion.

[20]                  With respect to the second charge, a charge of ill-treatment of a subordinate, counsel for the prosecution clarified in the course of his address that the ill-treatment referred to was, as particularised, the alleged threat.  As I am not satisfied that the element of a threat was established beyond a reasonable doubt, the accused is not guilty on charge No. 2.

                                                                             COMMANDER P.J. LAMONT, M.J.

Counsel:

Major A.M.  Tamburro, Regional Military Prosecutions Central

Counsel for Her Majesty The Queen

Major B.  Cloutier, Regional Military Prosecutions Central

Assistant Counsel for Her Majesty The Queen

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

Counsel for Master Corporal Carr