Courts Martial

 

COURT MARTIAL

 

Citation:  R v Keenan, 2013 CM 4010

 

Date:  20130613

Docket:  201337

 

Standing Court Martial

 

Canadian Forces Base Gagetown

Gagetown, New Brunswick

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Corporal N.L.M. Keenan, Offender

 

 

Before:  Lieutenant-Colonel J-G Perron, M.J.

 

 

REASONS FOR FINDING

 

(Orally)

 

INTRODUCTION

 

[1]               Corporal Keenan is accused of having wilfully made a false entry in a document that was required for an official purpose, of having uttered a forged document, of an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act and of conduct to the prejudice of good order and discipline.  All these charges stem from an itinerary and claim worksheet prepared and submitted by Corporal Keenan.

 

THE APPLICABLE LAW

 

[2]               Before this court provides its analysis of the evidence and of the charges, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt.  Although these principles are well known to counsel, other people in this courtroom may be less familiar with them.

 

[3]               It is fair to say that the presumption of innocence is most likely 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 the cases dealt with under Canadian criminal law, every person charged with an 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.

 

[4]               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 person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

 

[5]               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.  It is part of our history and tradition of justice.

 

[6]               In R v Lifchus [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model chart on 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 arrives 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 court.  The fact that the person has been charged is no way indicative of his or her guilt.

 

[7]               In R v Starr [2000] 2 S.C.R. 144, at paragraph 242, the Supreme Court of Canada 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....

 

On the other hand, 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, in this case Corporal Keenan, beyond a reasonable doubt.  To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

 

[8]               Evidence may include testimony under oath or 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.

 

[9]               It is not unusual that some evidence presented before the court to be contradictory.  Often, witnesses may have different recollections of events.  The court has to determine what evidence it finds credible.

 

[10]           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.  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 that accused chooses to testify.

 

[11]           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?  Finally, was the witness's testimony consistent with itself and with the uncontradicted facts?

 

[12]           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 it may well tint a witness's entire testimony.

 

[13]           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.

 

[14]           The court must focus its attention on the test found in the Supreme Court of Canada decision of R v W.(D.) [1991] 1 S.C.R. 742.  This 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.

 

In R v J.H.S. 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v H.(C.W.) (1991) 68 C.C.C. (3d) 146 (BCAA) where Wood J.A. suggested the additional instruction:

 

                I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

 

[15]           Having instructed myself as to the onus and standard of proof, I will now turn to the questions in issue put before the court.  The evidence before this court martial is composed essentially of the following: judicial notice, the testimony of witnesses, admissions and exhibits.  Judicial notice was taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence.  Two exhibits were produced by the prosecution.  Admissions are found at Exhibit 3.  The prosecution presented six witnesses; namely, Ms Roy, Corporal Munroe, Corporal Duval, Private Labbe, Sergeant Cummins and Sergeant Penney.  Corporal Keenan also testified.

 

[16]           A group of runners from Canadian Forces Base Gagetown participated in the 2012 Army Run in Ottawa and were transported by bus to Ottawa on Friday, 21 September.  The run was held on Sunday, 23 September and the group returned to Gagetown by bus on Monday, 24 September.  The group stayed at the Marriott hotel.  Runners were assigned to specific rooms and each room was shared by two persons.  Corporal Keenan drove one bus as part of her training to qualify on that type of bus, a Coach or Cruiser bus.  Upon her return to Gagetown she completed and submitted an itinerary and claim worksheet to her dispatcher.

 

[17]           Charges 1 and 2 were laid in the alternative.  The particulars of the 1st charge read as follows:

 

"In that she, on or about 25 September 2012, at or near Canadian Forces Base Gagetown, New Brunswick, when completing an itinerary and claim worksheet did indicate that her room was changed from double to single due to her room being cancelled, or words to that effect, knowing this to be false."

 

The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

 

(a)        the identity of the accused as the offender and the date and place as alleged in the charge sheet;

 

(b)               that Corporal Keenan completed an itinerary and claim worksheet;

 

(c)                that Corporal Keenan made an entry indicating her room was changed from double to single due to her room being cancelled;

 

(d)               that the entry was false;

 

(e)                that Corporal Keenan knew the entry was false;

 

(f)                that Corporal Keenan wilfully made that entry in the itinerary and claims worksheet; and

 

(g)               that the itinerary and claim worksheet was required for an official military purpose.

 

[18]           The identity of the offender and the time and place of every offence are not contested by defence counsel.  The evidence before this court proves these elements of the four offences beyond a reasonable doubt.  Corporal Keenan testified she wilfully completed an itinerary and claim worksheet and that she had indicated her room was changed from double to single due to her room being cancelled.  The evidence from Corporal Keenan and every witness clearly indicates the itinerary and claim worksheet is a document required for an official military purpose.

 

[19]           The question at the heart of this offence is whether the entry is false and whether Corporal Keenan knew that the entry was false.  Defence counsel argues that Corporal Keenan believed this entry was truthful because she had been told initially by Ms Hood that she had a single room and then had been informed by Ms Hood that she was booked in a double room because she had been taken off the driver's list.  The cancelled room in the comments section of the worksheet referred to that single room and not the double room she was supposed to occupy with Private Labbe.  While not commenting on Corporal Keenan's credibility and reliability the prosecutor described her testimony concerning her hotel room as being absurd.

 

[20]           Corporal Keenan testified she had received an email from Ms Jessica Hood informing her she would have a single room in Ottawa because she was a driver.  She became aware that she would be occupying a double room when she received the 12 September email from Warrant Officer Stillwell.  She then spoke to Ms Hood and also sent her an email requesting a single room.  Ms Hood told her she would look into the matter.  Ms Hood subsequently informed Corporal Keenan that Major Meaney had told Ms Hood that Corporal Keenan had been removed from the driver's list by Corporal Keenan's chain of command.  Corporal Keenan told Ms Hood she needed a single room since she was a driver.  Corporal Keenan testified Ms Hood told her to try to get a single room since she was a driver when she arrived at the hotel because no rooms were available on the day they were speaking.  Corporal Keenan testified she believed she could have a single room because the policy stated a driver had to get eight hours of sleep and had to get a single room.  She testified she knew she could only claim $119 for the room and her meals and incidentals because Ms Roy had told her so when she received her claim and also from the email found at Exhibit 4.  She stated that Ms Roy received that email and sent it to her and the others ("us" as Corporal Keenan testified).  She testified no one told her she could not get a single room.

 

[21]           Corporal Keenan drove the bus from Edmundston to Ottawa.  She drove the bus from Ottawa to Gagetown.  She requested a single room upon her arrival at the hotel.  She was told by the hotel staff that the hotel was overbooked and it took approximately 40 minutes to find a room; she was given a single room at a rate of $159 per night plus applicable taxes and fees.  She described that room as being filthy and having broken tiles.  While she did not mention this to the hotel, she testified she mentioned it to Corporal's Munroe and Dugal at supper time.

 

[22]           She testified that the "room was cancelled" entry in the worksheet referred to the original single room Ms Hood had told her had been booked for her and not the double room she was supposed to share with Private Labbe.  She explained that she wrote "No rooms available at original costing price for 3 ASG" in the comments section because she knew she would be asked why she had paid $159 and not $119.  She also stated she had written $539.01 as the cost of the room because that was the amount on the hotel guest folio.

 

[23]           She stated she did not intend to claim the full amount of the room and that was the purpose of her comments on the worksheet.  She believed she was only entitled to $119 since it was the only amount authorized.  She also explained she did not write the $119 amount in the comment section because Ms Roy knew that and it was not up to her to tell Ms Roy how to do her job.  She assumed Ms Roy would get the claim.

 

[24]           During her cross-examination, Corporal Keenan testified she had completed numerous claim forms before and had often provided additional information and that she knew the Canadian Forces needed the information for the claims process.  She agreed she had no authority to order or finalize her claim.  Usually the dispatcher assigns drivers, but in this case Warrant Officer Langley had issued the tasking because she was a driver trainee.  She agreed that Ms Hood, as a civilian, was not part of the chain of command an had no military authority.

 

[25]           She testified that she spoke to Warrant Officer Stillwell after seeing the email found at Exhibit 4 and he told her contact Ms Hood.  Warrant Officer Stillwell did not authorize or forbid anything.  While she knew Sergeant Cummins, another MSE OP of transportation company, was part of the group going to Ottawa, she did not approach him about her situation.

 

[26]           Warrant Officer Stillwell was the chief clerk of the Technical Services Branch HQ at 3 ASG Gagetown (see email at Exhibit 4).  He sent an email on 12 September to 19 action addressees, 18 of whom were from ASG Tech Svcs and one from the CFSME.  This email informs participants of the Army Run of the details they need to know.  Corporal Keenan is one of those addresses.  Corporal Keenan learned from that email that she had been assigned to a double room.

 

[27]           Ms Hood would have told Corporal Keenan that she had been assigned a double room because her chain of command had removed her from the driver's list.  Like many other aspects of this trial, the evidence on this issue is somewhat murky since no explanation was given or sought as to why this would have been done.  Ms Hood would have then told her to try to get a single room when she arrived at the hotel.  Corporal Keenan thus explains her actions and her comments on the worksheet by referring to these discussions with Ms Hood.  This evidence is not accepted for its veracity but only to help explain Corporal Keenan's actions.

 

[28]           The evidence of Sergeant Penney, the chief clerk of transportation company, confirms that one could book a single room if one wishes but that the person would be responsible to pay the difference should that room be costlier than the authorized rate.  Sergeant Penney and Ms Roy also testified the Canadian Forces would reimburse a driver if the extra room charges were not caused by the driver.

 

[29]           Corporal Keenan knew that her chain of command had removed her from the driver's list.  She spoke to Warrant Officer Stillwell about the matter and he referred her to Ms Hood.  Instead of speaking to someone within her chain of command within transportation company, she spoke to Ms Hood and decided, based on that conversation, to change her room when she arrived at the hotel.  She does not explain why she did not speak to anyone in her chain of command but she explains the need to have her own room as simply applying the rules she had learned at her course in Borden.  She stated the other drivers had their own room and that she was entitled to have her own room since she was a driver.  She also stated that if it was not approved she would have to pay for the difference.  As she said "those are the lumps you take."

 

[30]           She testified in cross-examination that the "Army is fickle, they pick and choose" when they reimburse for something and that the "chief clerk decides if you can claim the full amount."  The court finds that Corporal Keenan also picks and chooses.  She is told that her chain of command has taken her off the driver's list and thus she is only to be treated as a participant by the organizers of the event.  Yet, she pleads her case to a civilian employee or briefly discusses it with the chief clerk of the technical services branch instead of discussing the matter with Warrant Officer Langley or someone else from her chain of command.  During her testimony, she put great emphasis on the need of the proper rest when driving to justify her actions yet she did not address this issue with her superiors before she left for the tasking or during the tasking.

 

[31]           She testified she was dressed in civilian attire during the drive to Ottawa while the other drivers were in CADPAT.  It appears she chose to dress as a participant (see Exhibit 4) instead of dressing as a driver.  While no explanations were given to the court, again it appears that she again did as she wished.

 

[32]           A single room might have been reserved and then cancelled.  If it was, it appears it was cancelled following a decision by Corporal Keenan's chain of command.  Corporal Keenan knew that.  Corporal Keenan decided to book a single room.

 

[33]           The court finds Corporal Keenan's explanations concerning her understanding of the amounts she was entitled to claim for that specific temporary duty, her understanding of her entitlements as a driver as well as her views on how claims are processed at her company quite confusing.  She states she is entitled to a single room as a driver but would have to pay any difference should the room prove to be more expensive.  She does not seem to have much faith in the claims process within her unit.  She also explains the lack of precise information as to what she was actually claiming by simply stating that Ms Roy knew what she could claim and that it was not for Corporal Keenan to tell Ms Roy how to do her job.

 

[34]           Corporal Keenan wrote "Room was changed from DBL to single due to my room was cancelled" in the comments section of the itinerary and claim worksheet.  She testified as to what she meant by these words.  Defence counsel argued she did not have to insert the exact amount she was claiming.  The evidence clearly indicates that individuals must complete the worksheet correctly.  How else may clerks complete the claims and ensure that the correct amounts are reimbursed by the Canadian Forces?

 

[35]           Corporal Keenan entered $539.01 as the amount paid for her hotel room.  This amount is the same as the one found on the hotel guest folio and that was paid by Corporal Keenan.  Nothing on that worksheet informs the reader that she is only claiming $119 per night for the hotel expense instead of the $159 found in the guest folio.  To the contrary, the entries in the comments section indicate the reason the room was changed and the reason for the additional cost.

 

[36]           The court does not believe Corporal Keenan's testimony pertaining to her explanations concerning her entries in the comment section and the inscription of the amount for the hotel room.  The original single room would have been cancelled by Ms Hood based on the direction she received from Corporal Keenan's chain of command.  The decision to change from a double room to a single room was Corporal Kennan's decision.  Corporal Keenan knew who had cancelled her single room.  She knew she was supposed to share a room.  She decided to get a single room.

 

[37]           Defence counsel made certain comments concerning the cancellation of the room by Corporal Keenan's chain of command and that he would have liked to have been able to question these individuals.  Their testimonies might have been relevant and useful to the court or they might not have.  Lawyers present the case; the court hears and decides the case based on the evidence presented to the court.  The court cannot come to any conclusions on that specific issue since it was not provided with any evidence on that specific issue.

 

[38]           The court does not believe that Corporal Keenan is smart enough to indicate that rooms at the original price for 3 ASG were not available but that she did not think of clearly indicating she was only claiming for the $119 per night.  The entry is false because the room had been cancelled following the decision by her chain of command and the arrangements found in the email of Warrant Officer Stillwell and, thus, she was supposed to be in a double room and not because it had simply been cancelled.  In the present circumstances, the evidence before the court indicates that she did not have the authority to change the type of room for official military reasons.  Simply put, she did not have to change from a double room to a single room because the original single room had been cancelled by mistake; she changed rooms because she wanted to have a single room.

 

[39]           The entry is false because it does not represent the truth as it was known to Corporal Keenan; it is vague and misleading.  Every person making a document knows whether or not it reflects reality.  (see R v Couture (1991) 64 C.C.C. 3(d) 277 QCCA at page 230).  The court finds the entry was false and that Corporal Keenan knew that the entry was false.  The court finds the prosecution has proven every essential element of this offence beyond a reasonable doubt.

 

[40]           The particulars of the 2nd charge read as follows:

 

"In that she, on or about 25 September 2012, at or near Canadian Forces Base Gagetown, New Brunswick, did knowingly attempt to cause Ms Lucie Roy to act upon a forged document to wit an itinerary and claim worksheet as if it were genuine."

 

The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

 

(a)                the identity of the accused as the offender and the date and place as alleged in the charge sheet;

 

(b)               that the itinerary and claim worksheet was forged;

 

(c)                that Corporal Keenan knew that the itinerary and claim worksheet was forged;

 

(d)               that Corporal Keenan dealt with the itinerary and claim worksheet; and

 

(e)                that Corporal Keenan represented the itinerary and claim worksheet as genuine.

 

[41]           Was the itinerary and claim worksheet forged?  A forged document is a false document made by a person who knows it is false and who intends that it be dealt with as if it were genuine to the prejudice of another person.  It does not matter where or by whom the document was forged.

 

[42]           For the reasons expressed at charge No. 1, the court finds that the itinerary and claim worksheet was a false document made by Corporal Keenan.  The court also finds Corporal Keenan knew the document was false.  Corporal Keenan provided the itinerary and claim worksheet to her chain of command so that it would be processed as any other claim.  That claim ultimately was provided to Ms Roy.  The evidence proves beyond a reasonable doubt that she intended it to be dealt with as if it were a genuine document.  Its use would have caused a prejudice to the Canadian Forces since it would have caused the Canadian Forces to reimburse Corporal Keenan an amount for which she was not entitled.  The court finds that the itinerary and claim worksheet was forged.

 

[43]           Did Corporal Keenan know the itinerary and claim worksheet was forged?  This element relates to Corporal Keenan's state of mind, in particular her knowledge that the itinerary and claim worksheet was forged when she dealt with it.  One way of proving Corporal Keenan's knowledge that the itinerary and claim worksheet was forged when she dealt with it is to prove that Corporal Keenan actually knew or was aware that the document was forged when she had it.  Corporal Keenan does not have to know what the law considers a "forged document," but must know the relevant circumstances that make it a forged document.

 

[44]           Corporal Keenan wrote the comments in the comments section and she did enter the $539.01 amount.  For the reason expressed at charge No. 1, the court finds Corporal Keenan actually knew that the document was forged when she had it.

 

[45]           Did Corporal Keenan deal with the itinerary and claim worksheet?  Corporal Keenan dealt with the itinerary and claim worksheet by providing it to her unit when attempting to finalize her travel claim.

 

[46]           Did Corporal Keenan represent the itinerary and claim worksheet as genuine?  To represent something as genuine means to describe or put it forward as authentic, the real thing, as what it appears to be, rather than what it really is and Corporal Keenan knows it to be.  This element involves an intention on Corporal Keenan's part to deceive any person to whom she, by words or conduct, represents the itinerary and claim worksheet as authentic.  Corporal Keenan provided the itinerary and claim worksheet to her unit when she attempted to finalize her travel claim.  She presented it to justify the expenditures she was claiming.  The court finds she did represent the itinerary and claim worksheet as a genuine.  The court finds the prosecution has proven every essential element of this offence beyond a reasonable doubt.

 

[47]           Charges 3 and 4 were laid in the alternate.  The particulars of the 3rd charge read as follows:

 

"In that she, on or about 25 September 2012, at or near Canadian Forces Base Gagetown, New Brunswick, with intent to defraud, submitted a claim for accommodation expenses to which she knew she was not entitled."

 

The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

 

(a)                the identity of the accused as the offender and the date and place as alleged in the charge sheet;

 

(b)               that Corporal Keenan submitted a claim for accommodation expenses;

 

(c)                that Corporal Keenan was not entitled to these accommodation expenses;

 

(d)               the deceitful practice, in that Corporal Keenan knew she was not entitled to these accommodation expenses;

 

(e)                the depravation of another of their rights or property through deceit, falsehood or some other dishonest act; and

 

(f)                that Corporal Keenan intentionally provided this false information with the intent to defraud the Canadian Forces.

 

[48]           There is no doubt that Corporal Keenan submitted a claim for accommodation expenses.  Was Corporal Keenan entitled to these accommodation expenses?  Corporal Keenan claimed an amount of $539.01 for her room expenses.  She was allowed to claim a maximum of $403.41 for these expenses.  (see Exhibits 3 and 4).  She was thus claiming an amount of $135.60 more than what she had been allowed.  For the reasons expressed at charge No. 1, the court finds that Corporal Keenan was not entitled to that amount.

 

[49]           Did Corporal Keenan know she was not entitled to these accommodation expenses?  For the reasons expressed at charge No. 1, the court finds Corporal Keenan knew she was not entitled to these expenses.

 

[50]           Did Corporal Keenan deprive the Canadian Forces through deceit, falsehood or some other dishonest act?  Simply placing the Canadian Forces at risk of deprivation is sufficient to prove the intended prohibited consequence.  It would appear she was ultimately reimbursed the amount of $403.41 when her travel claim was finalized.  For the reasons expressed at charge No. 1, the court finds Corporal Keenan through deceit and falsehood deprived the Canadian Forces of the amount of $135.60.  This deprivation is only a risk of deprivation since that amount was not paid to Corporal Keenan.

 

[51]           Did Corporal Keenan intentionally provide this false information with the intent to defraud the Canadian Forces?  For the reasons expressed at charge No. 1, the court finds Corporal Keenan intentionally provided this false information with the intent to defraud the Canadian Forces.  The court finds the prosecution has proven every essential element of this offence beyond a reasonable doubt.

 

[52]           The particulars of the 4th charge read as follows:

 

"In that she, on or about 25 September 2012, at or near Canadian Forces Base Gagetown, New Brunswick, did attempt to commit an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act, to wit by submitting a claim for accommodation expenses to which she knew she was not entitled."

 

The prosecution had to prove the following essential elements for this offence beyond a reasonable doubt:

 

(a)                the identity of the accused as the offender and the date and place as alleged in the charge sheet;

 

(b)               that Corporal Keenan submitted a claim for accommodation expenses;

 

(c)                that Corporal Keenan knew she was not entitled to these accommodation expenses; and

 

(d)               that Corporal Keenan attempted to commit an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act.

 

[53]           The court has already found that the prosecution has proven beyond a reasonable doubt that Corporal Keenan had committed an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act as found at section 117 of the National Defence Act.

 

[54]           Paragraph 3 of section 129 of the National Defence Act clearly sets out that an attempt to commit any of the offences prescribed in sections 73 to 128 of the National Defence Act is deemed to be an act, conduct, disorder or neglect to the prejudice of good order and discipline.  The prosecution needs only to prove the attempt to commit the offence at section 117 to establish the prejudice to good order and discipline.

 

[55]           The offence of attempting to commit an offence requires the intent to commit the substantive offence, in our case an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act and the actions in execution of the intention going beyond the simple stage of preparation to commit the substantive offence.  The key aspect of this offence is the guilty intention.  (see R v Cline (1956) 115 C.C.C. 18 ONCA).

 

[56]           Section 24 of the Criminal Code of Canada codifies the offence of attempt.  It reads as follows:

 

                Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

 

And at paragraph 2:

 

                The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, an too remote to constitute an attempt to commit the offence, is a question of law.

 

The offence of attempt is a specific intent offence in that the evidence must prove the accused intended to commit the offence, in our case the offence found at section 117.  (see R v Ancio [1984] 1 SCR 225 and R v Lavoie [1993] RJQ 88).

 

[57]           The offence found at section 117 of the National Defence Act is fundamentally the offence of fraud.  The prohibited act of fraud is deceit, falsehood or some other dishonest act while the prohibited consequence is deprivation of another's property and it may consist in only placing that property at risk of deprivation.  (see R v Theroux [1993} 2 SCR page 19).

 

[58]           The court finds the evidence proves beyond a reasonable doubt that Corporal Keenan's actions in completing the itinerary and claim worksheet as she did and submitting it to her chain of command were more than a simple preparation to commit the offence.  The court has found that Corporal Keenan intentionally provided the false information with the intent to defraud the Canadian Forces.  The evidence accepted by the court proves beyond a reasonable doubt that she intended to claim fraudulently the amount of $539.01 when she presented her completed worksheet.  The court finds the prosecution has proven every essential element of this offence beyond a reasonable doubt.

 

FOR THESE REASONS, THE COURT:

 

[59]           ORDERS a stay of proceedings with respect to charge No. 1.

 

[60]           FINDS Corporal Keenan guilty of charge No. 2.

 

[61]           FINDS Corporal Keenan guilty of charge No. 3.

 

[62]           ORDERS a stay of proceedings with respect to charge No. 4.

 

 

Counsel:

 

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

Counsel for Her Majesty the Queen

 

Lieutenant-Commander P.D. Desbiens, Directorate of Defence Counsel Services

Counsel for Corporal Keenan