Courts Martial
Decision Information
Summary:
Date of commencement of the trial: 30 November 2004.
Location: CFB Petawawa, building L-106, Petawawa, ON.
Charges:
• Charge 1: S. 84 NDA, struck a superior officer.
• Charge 2: S. 85 NDA, behaved with contempt toward a superior officer.
Results:
• FINDINGS: Charge 1: Not Guilty. Charge 2: Guilty.
• SENTENCE: A fine in the amount of $1000.
Decision Content
Page 1 of 4 Citation:R. v. ex-Private R. Powers,2004CM13 Docket:F200413 STANDING COURT MARTIAL CANADA ONTARIO CANADIAN FORCES BASE PETAWAWA Date:2 December 2004 PRESIDING:COMMANDER P.J. LAMONT, M.J. HER MAJESTY THE QUEEN v. EX-PRIVATE R. POWERS (Accused) FINDING (Rendered orally) [1] Stand up please, Mr. Powers. This court finds you not guilty of charge number one and guilty of charge number two. You may be seated. [2] The events giving rise to these charges took place in the washroom area of the Sherman Club Junior Ranks Mess in Meaford, Ontario, on November 11, 2003. Yesterday, I reserved my ruling on the pre-trial application of the defence for a stay of proceedings based upon section 7 of the Charter. It was argued that the delay until charges were laid in this case prejudicially affected the ability of the accused to test the credibility of the named complainant, Master Corporal Stanbury, in his defence. [3] In my view, the evidence on the application when considered with the evidence heard during the trial falls short of establishing prejudice to the ability of the accused to make his defence to these charges because of delay between the commission of the offence and the laying of the charges on 31 March 2004. [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
Page 2 of 4 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 "beyond a reasonable doubt" is much closer to absolute certainty than it is to a standard of "probable guilt". 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. [6] 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 conclusion as to what happened 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. If the evidence of the accused as to the issues or the important aspects of the case is accepted, it follows that he is not guilty of the offence. But even if his evidence is not accepted, if the court is left with a reasonable doubt, he is to be found not guilty. Even if the evidence of the accused does not leave the court with a reasonable doubt, the court must still look at all the evidence it does accept as credible and reliable to determine whether the guilt of the accused is established beyond a reasonable doubt. [7] There are substantial inconsistencies and contradictions between the evidence of witnesses in this case. However, I do not accept the submission that the three witnesses for the prosecution put their heads together as to what their evidence would be. In some cases, and this is one such case, it is the fact of the inconsistencies that indicates that the witnesses have not concocted their evidence but are simply mistaken in some respects. It is the job of the court in assessing the credibility of the witnesses to consider how those mistakes affect the reliability of the evidence given by a witness. I have assessed the evidence of the witnesses in this case in that light. [8] I am left in doubt as to whether the accused hit Master Corporal Stanbury. The evidence of the prosecution witnesses was contradictory as to the number of occasions Master Corporal Stanbury was struck, how he was struck, whether the left or right side,
Page 3 of 4 and the degree of strength of the blow. The accused is not guilty of striking a superior officer. [9] I am satisfied by the evidence of Private Jerome and Private Baker that the accused spat in the face of Master Corporal Stanbury. I do not accept the submission that this was merely spittle from the accused which ended up on the face of Master Corporal Stanbury because the parties were yelling while at very close quarters. I find that the spitting by the accused was intentional and was part of a pattern of conduct by the accused intended by him to demonstrate that he held both Master Corporal Stanbury and the reserve force, generally, in disdain. [10] It is true that the evidence of Private Gillies, in particular, is inconsistent with the evidence of Privates Jerome and Baker on such matters as the amount and kind of alcohol consumed and the incidental actions of the parties and others in the washroom. Nevertheless, I am satisfied on all the evidence that Private Jerome and Private Baker accurately described the spitting incident. [11] I do not accept the submission that the accused was acting in self-defence mode in a hostile environment that relieved him of the obligation either to show proper respect to the master corporal or to give his name to Master Corporal Stanbury when it was demanded. It is true that in a typical mess situation, in some circumstances, the relationship of superior to subordinate will not be rigidly enforced but the relaxed mess environment does not permit one member of the mess to demonstrate disrespect for a superior officer as an individual, the uniform the superior officer wears and the component of the Canadian Forces in which he serves. [12] I do not accept the evidence of the accused that he felt threatened by Master Corporal Stanbury and Privates Jerome and Baker in the washroom. In my view, his persistently insulting behaviour during this period does not square with his evidence of being threatened. I do accept that the accused simply wished to get away from the area and Master Corporal Stanbury was preventing his leaving to some extent but I find that he was simply trying to ignore Master Corporal Stanbury rather than comply with a reasonable and justifiable demand to identify himself. [13] Master Corporal Stanbury was in uniform, including the regimental kilt worn by the Lorne Scots. In my view, when the accused referred to the uniform as a "nice skirt" in Master Corporal Stanbury's hearing, the remark was intended as an insult. In that circumstance, Master Corporal Stanbury was fully justified in requiring the accused to identify himself. Indeed, Master Corporal Stanbury would have failed in his duty if, as a superior of the accused, he did not take steps to ensure that the insult was corrected. As a junior member, the accused should have immediately identified himself to Master Corporal Stanbury when requested. His failure to do so is part of the pattern of the lack of respect he showed towards Master Corporal Stanbury.
Page 4 of 4 [14] I do not attach any significance to the question of whether, in fact, the accused had scuffed the boots of another individual or whether there was a remark about the accused's regiment. The accused was still obliged to show proper respect for Master Corporal Stanbury's rank and uniform. [15] I do not accept the evidence of the accused that he was unaware of the rank of Master Corporal Stanbury. His rank was worn on his sleeve for the purpose of it being apparent to anyone. The accused noticed the kilt part of the uniform. There is no evidence that his powers of observation were impaired by alcohol or by any other factor. I simply do not believe that the accused did not know he had offered an insult to a superior officer when he remarked about a nice skirt. [16] I accept the evidence of Private Jerome as to the conversation between the accused and Master Corporal Stanbury in which the accused asked Master Corporal Stanbury how long he had taken to reach the appointment of master corporal and that he, the accused, could have reached master corporal in two years. If, as the accused testified, he only became aware at some later point in the transaction that the other person was a master corporal, he should have immediately changed his behaviour. Instead it appears that his contemptuous behaviour towards Master Corporal Stanbury continued throughout his dealings with Master Corporal Stanbury in the mess. [17] The verbal insults offered to Master Corporal Stanbury by the accused are not the gravamen of the charge of behaving with contempt but the pattern of this disrespectful and contemptuous behaviour leads me to conclude beyond a reasonable doubt that the accused intended to behave contemptuously towards Master Corporal Stanbury when he spat in his face. COMMANDER P.J. LAMONT, M.J. Counsel: Major B.J. Wakeham, Director Military Prosecution Counsel for Her Majesty the Queen Major A. Appolloni, Directorate of Defence Counsel Services Counsel for ex-Private R. Powers
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