Courts Martial
Decision Information
Summary:
Date of commencement of the trial: 8 March 2005.
Location: Saint-Jean Garrison, General Jean-Victor Allard Building, megastructure, ground floor, area B-100, blue, Richelain, QC.
Charges:
• Charge 1 (alternate to charge 2): Para. 125(c) NDA, with intent to deceive, made away with documents kept for a military purpose.
• Charge 2 (alternate to charge 1): S. 129 NDA, neglect to the prejudice of good order and discipline.
Results:
• FINDINGS: Charge 1: Not guilty. Charge 2: Guilty.
• SENTENCE: A fine in the amount of $500.
Decision Content
Page 1 of 14 Citation: R. v. Corporal M.T.H. Desjardins , 2005CM10 Docket: V200510 STANDING COURT MARTIAL AREA SUPPORT UNIT ST-JEAN ST-JEAN-SUR-RICHELIEU (438 TACTICAL HELICOPTER SQUADRON) Date: March 9, 2005 PRESIDING: LIEUTENANT-COLONEL MARIO DUTIL, M.J. THE QUEEN, v. CORPORAL M.T.H. DESJARDINS, (Accused) VERDICT (Delivered orally) OFFICIAL ENGLISH TRANSLATION Introduction [1] Corporal Desjardins is charged, first, under paragraph 125(c) of the National Defence Act, that she did make away with documents kept for military purposes, to wit, documents entitled “[TRANSLATION] Recorded Warning” and “Correction of Deficiencies”, with intent to deceive. The prosecution also laid a second charge in the alternative, alleging neglect to the prejudice of good order and discipline, under section 129 of the National Defence Act, for failing to put documents kept for military purposes, the same documents to which the first count refers, back into her personal file.
Page 2 of 14 The Evidence [2] The evidence before this Court Martial is essentially comprised of the following: the testimony heard: in the order of their appearance before the court, the testimony of Master Corporal Caroline Demers, Sergeant Michel Trudel, Petty Officer First Class Michel Roy, Corporal Marie-Claude Ouellet and Corporal Myriam Desjardins, the accused in this case; the evidence before this Court consists also of the judicial notice taken by the Court of the facts and issues that fall within Rule 15 of the Military Rules of Evidence. The Facts [3] The facts surrounding this case essentially relate to the events that took place in the accused’s unit between March 24 and March 26, 2003, in St-Hubert, Quebec. According to the evidence heard, on or shortly before March 24, 2004, Corporal Desjardins asked the authorities of her unit for permission to consult her personal file in order to make photocopies of certain documents SS primarily course reports SS so that she could obtain academic qualifications from the civilian authorities. Accordingly, Sergeant Trudel, her supervisor, contacted the staff in the reports room, to get Corporal Desjardins’ personal file. In accordance with the practice in effect, the personal files of members of the regular force in the unit were kept in Montréal, while the files of members of the reserve force were kept in the unit. The personal file for Corporal Desjardins, a member of the regular force for over 20 years, therefore had to be transferred from Montréal to St-Hubert so that she could consult it and make the photocopies she needed there. Obviously, once she was finished consulting the file, it had to be returned to Montréal. She therefore attended at the reports room in her unit on March 24, 2003, in the late afternoon, between 3:00 and 3:30 p.m., to consult her personal file. There, she met Master Corporal Demers, the administration clerk. Master Corporal Demers informed her that it was late in the day. Corporal Desjardins nonetheless briefly consulted her personal file in the presence of Master Corporal Demers, who was sitting across from her. The personal file of a member of the military is generally composed of a large number of personal documents of varying sizes, which are kept together in descending chronological order, using an Acco Fastener two-hole fastener. She then noticed that there were three documents in her unit personal file that, in her opinion, should not have been there. Those documents were: a recorded warning given to her on February 24, 1997, a memorandum entitled “Correction of Deficiencies” dated February 8, 2001, stating that she had successfully remedied the problems for which she had been given the recorded warning, and an interim performance evaluation report from 1996. Corporal Desjardins expressed her
Page 3 of 14 stupefaction, and told Master Corporal Demers at that time that those documents should not be there. As Master Corporal Demers recounted the event, she told Corporal Desjardins that she did not know what to do in a situation like that, and said: “[TRANSLATION] We don’t touch anything, we don’t remove anything.” Master Corporal Demers, who had just come back from a lengthy 15-month leave, wanted to ask her superior and chief clerk, Petty Officer First Class Roy, at that time Petty Officer Second Class, concerning how to proceed in the circumstances. According to Master Corporal Demers, Corporal Desjardins then asked her not to discuss the matter with the chief clerk. The meeting lasted 10 minutes at the most, after which Master Corporal Demers invited Corporal Desjardins to come back to the reports room after 9:00 a.m. the next morning. Corporal Desjardins left shortly thereafter, and Master Corporal Demers filed Corporal Desjardins’ personal file in a safe place before leaving for the rest of the day. According to the evidence heard, Corporal Desjardins made a spontaneous statement to Sergeant Trudel when she went back to her workplace after consulting her personal file; at that time, she told him: “[TRANSLATION] my file is clean.” It seems that this statement was so surprising that it attracted Sergeant Trudel’s attention at that time. [4] On the morning of March 25, 2003, Master Corporal Demers met with her chief clerk, Petty Officer Second Class Roy, to inform him about the situation relating to the existence of contentious documents in Corporal Desjardins’ personal file, even though Corporal Desjardins had asked her not to do that. According to the evidence heard, Master Corporal Demers and Petty Officer Second Class Roy then consulted Canadian Forces Administrative Order 26-17 which states, inter alia, that a “recorded warning” shall remain permanently on the member’s unit personal file. In other words, that kind of document may not be destroyed or removed from the member’s personal file. According to Master Corporal Demers, Corporal Desjardins returned to the reports room in the early afternoon to consult her file again. According to the accused, that visit took place in the morning. Master Corporal Demers then handed her the file. Master Corporal Demers was very busy that morning. Corporal Desjardins again expressed her dissatisfaction concerning the presence of the documents in question and she informed her that a Ms. Mooney in the privacy office in Ottawa had told her that she could remove the recorded warning from her file. Master Corporal Demers then told her that CFAO 26-17 said the opposite, and showed her the relevant provision. According to Master Corporal Demers, Corporal Desjardins then consulted her personal file, which she gave back after 20 or 25 minutes. Master Corporal Demers testified that she lost contact with Corporal Desjardins during that time, and did not know what Corporal Desjardins did with her file during that time. Master Corporal Demers testified that she had not paid attention to Corporal Desjardins during that time because she was very busy. The Accused testified that she asked Master Corporal Demers to provide her with sticky notes to mark the documents that she wanted to photocopy, and Master Corporal Demers did so. She then set about identifying the documents of which she wanted to get copies, using the sticky notes supplied by Master Corporal Demers. Corporal
Page 4 of 14 Desjardins also said that she asked Master Corporal Demers to make her photocopies of the documents she had identified, but instead she invited her to do it herself, using the photocopier located at the back of the room. That version of the facts was not submitted by the defence on cross-examination of Master Corporal Demers, or on examination in chief. Master Corporal Demers further stated, in her testimony, that members of the military may not take their personal files to make copies. Sergeant Trudel, however, testified that the day after the second meeting between Corporal Desjardins and Master Corporal Demers, Master Corporal Demers told him that Corporal Desjardins had indeed made photocopies. That statement is not inconsistent with the accused’s version on this point. At the least, it raises a doubt as to the degree of supervision that Master Corporal Demers should have exercised while Corporal Desjardins was consulting her personal file, and Master Corporal Desmers’ personal knowledge that Corporal Desjardins had made photocopies of documents from her personal file, contrary to what Master Corporal Demers said about having lost contact with Corporal Desjardins during that time and not knowing what Corporal Desjardins a did with her file during that time. [5] Corporal Desjardins described the method she used for making photocopies of certain documents in her personal file. As she recounted it, she went to the photocopier at the back of the reports room with her file. She removed the Acco Fastener system that kept her personal file together. Corporal Desjardins told us that she did not know whether the documents that made up the content of her personal file were placed there in chronological order, because she did not look. She then set about removing the documents, slowly and with difficulty, without any particular method. She was still angry because documents such as the recorded warning and the memorandum entitled “Correction of Deficiencies” should not have been in her unit personal file, and should instead have been in her personal file which was kept at National Defence Headquarters in Ottawa. On cross-examination, Corporal Desjardins added that she is normally a person who is attentive to detail, conscientious and diligent. That statement is also entirely consistent with her occupation, as a specialist technician, and her more than 20 years experience in the Canadian Forces. Nonetheless, Corporal Desjardins testified that before photocopying the documents she had identified with the sticky labels, she took everything out and it got mixed up. According to the accused’s testimony, she took nearly a half hour to make photocopies of the documents, including some fifteen course reports and the documents that are the subject of the charges before this Court. Corporal Desjardins told us that she photocopied those documents one at a time, while she was still angry. When the copies were made, she put them back in her personal file, without regard to the order in which they had been in her personal file. Corporal Desjardins added that she made copies of the recorded warning, the memorandum and the evaluation report, because she wanted to clarify the situation with the military authorities responsible for the reports room in Montréal where file was permanently kept, and she wanted to make her views known. Those documents were on 8.5 x 11 paper, and according to Corporal Desjardins, she was justified in doing this because the administrative personnel in her unit was very largely made up of members of the reserve force and she was not satisfied that either their experience or their administrative skills
Page 5 of 14 were adequate, from what she had personally observed to that point. She added, on cross-examination, that the presence of the recorded warning in her personal file was not to her liking. Corporal Desjardins also testified that she had scattered the documents. Some of them were on the photocopier lid, while others were beside the lid and on the small table located beside the machine. [6] According to Corporal Desjardins, she then picked up the documents that were scattered around to put them back in the file. She then put the originals of the course reports, which were on 8.5 x 14 paper, back in her personal file, but the 8.5 x 14 documents were still lying there. That was when Corporal Ouellet told her, as she passed by, not to forget to pick up those of her papers that were on or near the photocopier. This was in fact corroborated by Corporal Ouellet. Corporal Desjardins testified that at that point she picked up all the papers that were lying around, without looking at them, and put them in an envelope, which she took home. Corporal Desjardins acknowledged that she could have handled her personal file more carefully, and was careful to add that she had been overwhelmed by the mountain of papers that made up her personal file. [7] The evidence is that once the copies had been made, Master Corporal Demers filed Corporal Desjardins’ personal file. She again discussed the events of the previous day with Petty Officer First Class Roy, that is, Corporal Desjardins’ discovery of the three documents that, in her opinion, should not have been there. Master Corporal Demers was particularly uncomfortable with, or confused by, Corporal Desjardins’ request that she not raise this question with her chief clerk. Chief clerk Roy then asked Master Corporal Demers to check Corporal Desjardins’ personal file to determine whether certain specific documents, including the recorded warning, were missing. Master Corporal Demers then observed that this was in fact the case, and informed her chief clerk. Corporal Desjardins’ chain of command was informed: Sergeant Trudel, Master Warrant Officer Slater and Warrant Officer Audet. She was summoned to a meeting the next day with those three individuals. The result of that meeting was that Corporal Desjardins was unequivocally informed that the documents had disappeared from her personal file. Although the evidence does not provide a satisfactory basis for saying that Corporal Desjardins was treated like a “thief” during that meeting, her version of the events indicates that she told her superiors that no one was going to treat her like a thief. At that point she left the meeting, at her request or the request of her superiors, went home, and, 10 to 15 minutes later, returned with an envelope containing a large number of documents, including the originals of the recorded warning and “Correction of Deficiencies” memorandum. [8] In general, the testimony given by Master Corporal Demers and Petty Officer First Class Roy, who were the clerk and chief clerk of the unit, respectively, at the time of the incidents to which this case relates, told us that the personal files of members of the military are created when they enrol and contain a large number of personal documents, ranging from course reports to performance evaluation reports, and even including claims. The personal file is composed of documents of varying sizes. It is held together using a two-hole system,
Page 6 of 14 that is, each document is punched at the top before it is inserted into an Acco-Fastener type fastener. Personal files are accessible only to individuals who have prior authorization, and a member of the military may consult his or her personal file only on request. This completes the summary of the facts to which this case relates, as they were established by the evidence. The Applicable Law and the Essential Elements of the Charges The 1 st count (paragraph 125(c) of the National Defence Act) [9] On the 1st count, making away with documents kept for military purposes with intent to deceive, contrary to paragraph 125(c) of the National Defence Act, the prosecution had to prove beyond a reasonable doubt, in addition to the identity of the accused and the date and place of the offence as they are alleged in the charge, that: (a) Corporal Desjardins made away with documents from her personal file, and more specifically with a document entitled “[TRANSLATION] Written Warning” and another document entitled “Correction of Deficiencies”; (b) the documents in question were kept for military purposes; (c) the act with which she is charged was committed with the intent to deceive. The 2nd count (section 129 of the National Defence Act) [10] On the 2nd count (in the alternative to the first count), that she committed neglect to the prejudice of good order and discipline, contrary to section 129 of the National Defence Act, the prosecution had to prove beyond a reasonable doubt, in addition to the identity of the accused and the date and place of the offence: (a) the neglect alleged against the accused, that is, in this precise case, that she failed to put documents kept for military purposes, who wit, documents entitled “[TRANSLATION] Written Warning” and “Correction of Deficiencies”. back in her personal file; (b) that if Corporal Desjardins’s failure constituted neglect within the meaning of the Act, it was, in the circumstances, to the prejudice of good order and discipline; and (c) the accused’s mens rea where the offence is alleged to have been
Page 7 of 14 committed. Presumption of innocence and reasonable doubt [11] Before applying the law to the facts of the case, we should consider the presumption of innocence and the standard of proof that consists of proof beyond a reasonable doubt, which is an essential component of the presumption of innocence. [12] Whether the charges are laid under the Code of Service Discipline before a military court or are proceedings before a civilian criminal court involving criminal charges, an accused person is presumed innocent until the prosecution has proved his or her guilt beyond a reasonable doubt. The prosecution has that burden of proof throughout the trial. An accused person has no duty to prove his or her innocence. The prosecution must prove each of the essential elements of the charge beyond a reasonable doubt. Proof beyond a reasonable doubt does not apply to individual pieces of evidence or to various parts of the evidence; it applies to the entirety of the evidence on which the prosecution relies to prove guilt. The burden of proof is on the prosecution throughout the trial, and never shifts to the accused. [13] A court will have to acquit an accused if it has a reasonable doubt as to his or her guilt after assessing the evidence as a whole. The expression “beyond a reasonable doubt” has been used for a very long time. It is part of the history and traditions of our judicial system. In R. v. Lifchus [1997], 3 S.C.R. 320, the Supreme Court of Canada laid down the way that reasonable doubt is to be explained in a charge to the jury. The principles in Lifchus have been applied in a number of subsequent appeals. At bottom, a reasonable doubt is not an imaginary or frivolous doubt. It cannot be based on sympathy or prejudice. Rather, it must be based on reason and common sense. It must logically be derived from the evidence or absence of evidence. [14] In R. v. Starr [2000] 2 S.C.R. 144, at para. 242, Iacobucci J., writing for the majority, said, and I quote: “... 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.” It should be noted, however, that it is virtually impossible to prove something with absolute certainty and that the prosecution is not required to do this. There is no such standard of proof in law. The prosecution must prove the guilt of the accused, in this case Corporal Desjardins, only beyond a reasonable doubt. [15] As I said earlier, the appropriate approach to take to the standard of proof consists of assessing the evidence as a whole, and not assessing individual pieces of evidence taken separately. It is therefore essential to assess the credibility and reliability of the testimony having regard to the evidence as a whole.
Page 8 of 14 [16] The standard of proof that consists of proof beyond a reasonable doubt also applies to questions of credibility. The Court need not make a definitive determination as to the credibility of a witness or group of witnesses. Moreover, the Court need not believe the testimony of a person or group of people in its entirety. [17] If the Court has a reasonable doubt as to the guilt of Corporal Desjardins that arises out of the credibility of the witnesses, it must acquit her. [18] In those circumstances, the law requires that the Court find the accused not guilty: (a) first, if the Court believes the accused’s account, and (b) second, even if the Court does not believe the accused, if it has a reasonable doubt arising out of the accused’s testimony after considering that testimony in the context of the evidence as a whole.. In addition, if, after assessing the evidence as a whole, the Court does not know whom to believe or has a reasonable doubt as to whom to believe, it must give the accused the benefit of that doubt and acquit him or her. [19] It was in R. v. W.(D.) [1991], 1 S.C.R. 742, at page 758, that Cory J. proposed a three-pronged approach when the trial judge might have give the jurors instructions regarding credibility, in the context of the standard of proof consisting of proof beyond a reasonable doubt, and I quote: a First, if you believe the evidence of the accused, obviously you must acquit. b Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. c 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. [20] With these comments regarding the presumption of innocence and the standard of proof consisting of proof beyond a reasonable doubt, including when it applies to questions of credibility, the Court will now consider the facts established by the evidence having regard to the applicable law.
Page 9 of 14 The Issues The 1st count (paragraph 125(c) of the National Defence Act) [21] With respect to the 1st count, under paragraph 125(c) of the National Defence Act, making away with documents kept for military purposes, the parties agree that the only issue relates to the essential element of intent, or the requisite mens rea. The intent required under paragraph 125(c) of the Act is a specific intent. The prosecution relied primarily on the circumstantial evidence supplied, in particular, by a statement made by the accused to her superior when she returned from the reports room after consulting her personal file, which was that her “[TRANSLATION] file is clean”. The prosecution also relied on certain contradictions or discrepancies between the testimony given by Master Corporal Demers and the testimony of Corporal Desjardins, which, it submitted, had a significant impact on the credibility of the accused as support for her position. The defence, on the other hand, argued that when Corporal Desjardins took the documents her purpose was merely to make copies of the contentious documents, and that the failure to put the originals back in the personal file was inadvertent. The defence submits that the accused’s action cannot amount to “[TRANSLATION] making away with documents kept for military purposes from her personal file”. In the submission of the defence, the accused’s failure to put the documents back in her personal file, in the circumstances of this case and having regard to the evidence as a whole, cannot provide the basis for proving the essential element of this offence, which is intent to deceive. The 2nd count (section 129 of the National Defence Act) [22] The parties are in general agreement as to the issues in respect of the 2nd count, laid under section 129 of the National Defence Act: “[TRANSLATION] Neglect to the prejudice of good order and discipline”. First, the essential elements of the offence that consist of the identity of the accused, the date and place of the offence and the fact that Corporal Desjardins failed to put documents kept for military purposes back in her personal file, to wit, documents entitled “[TRANSLATION] Recorded Warning” and “Correction of Deficiencies”, are not contested. First, the prosecution submits that if the Court believes the accused’s account of the facts, it should find her guilty on the 2nd count because the evidence establishes, beyond a reasonable doubt, that she was negligent in not handling her personal file with all the diligence required by the applicable standard in that regard, and the accused’s neglect in this instance was to the prejudice of good order and discipline. Second, the defence admits that the actus reus of the offence has been proved, but submits that the prosecution failed to discharge its burden of proof in relation to the standard required of a person in these circumstances. The Court is not satisfied, however, that the defence has gone so far as to admit the actus reus, if we consider the defence submissions in their entirety. I shall address this issue in my analysis regarding the 2nd count.
Page 10 of 14 [23] Based on the evidence before this Court, as a whole, and the discrepancies that exist between the accused’s account fo the facts and the accounts given by the other witnesses regarding certain matters that the Court considers to be important, such as the interaction between Master Corporal Demers and Corporal Desjardins at their two meetings, the Court is of the opinion that an examination of the credibility of the witnesses who were called to testify before this Court is particularly important in determining whether the prosecution has discharged its burden of proof. Decision Analysis of the witnesses’ credibility [24] The Court has carefully considered all of the testimony, having regard to the evidence as a whole. There is no magic formula for deciding whether testimony is credible, or what weight must be assigned to it. The Court paid attention to, among other things, the integrity and intelligence of each of the witnesses, their capacity for observation and their ability to report their observations to the Court. The Court considered their ability to remember events, taking into consideration the fact that some events or some facts may affect every person differently. The Court observed the witnesses, paying attention to factors such as whether the witness tried honestly to tell the truth, whether he or she was sincere and candid, or biased, hesitant and evasive. In assessing the credibility of each of the witnesses, the Court asked itself a number of questions. Did the witness appear honest? Did the witness have any particular reason not to tell the truth? Did the witness have an interest in the outcome of the case or a reason to present evidence that favoured one party rather than the other? Was the witness able to present accurate and complete observations concerning the event? Did he or she had the opportunity to do so? In what circumstances were the observations made? What was the witness’s state of mind? Was this an ordinary or extraordinary event? Did the witness give the impression of having a good memory? Did the witness have any reason to remember the events about which he or she testified? Did the witness’s inability to remember or difficulty in remembering the events seem to be genuine, or was it used as an excuse to avoid answering questions? Was the testimony internally consistent, and consistent with other testimony? Had the witness previously said or done anything different? Were inconsistencies in the testimony so serious that they made the main aspects of it less credible or less reliable? Was the inconsistency significant or minor? Was it a mistake made in good faith or a deliberate lie? Did the inconsistency arise out of a different statement by the witness or an omission on the witness’s part? Could it be explained? Did the explanation make sense? How did the witness behave while testifying? — without placing too much weight on this, because appearances are sometimes misleading. [25] Testifying is not an everyday experience. People react and present themselves differently. They have different abilities, values and life experiences. There are simply too
Page 11 of 14 many variables for the behaviour of a witness to be the only factor, or the most important factor, in making a decision. [26] Corporal Desjardins testified before this Court. Based on the evidence as a whole, the Court cannot conclude that Corporal Desjardins’ testimony must be rejected in its entirety. The Court is persuaded that she was exaggerating when she described how she was lost and mixed up while she was making photocopies of the documents in her personal file. She is an experienced person who performs tasks on a day to day basis that call for more calm and self-control than usual. She also testified firmly and calmly despite her evident nervousness, which is attributable to the stress relating directly to the emotions of an accused person who is testifying before a court. The Court did not believe her when she described the state of total disarray she was in when she was making the photocopies. She was angry and she was not familiar with how the photocopier worked, but to get from there to losing her wits, as she herself described doing, is inconsistent with her own account of her own personal characteristics, in particular her attention to detail and professionalism, and with the evidence relation to her interaction with Master Corporal Demers, when she was in control of her wits, even though she was angry. [27] Master Corporal Demers had no interest in this case. She was generally credible. The passage of time had certainly had some affect on her memory on certain questions. Nonetheless, the Court has some reservations regarding certain portions of her testimony. First, she told us that people are not authorized to make photocopies. However, Sergeant Trudel testified that the day after the second meeting between Corporal Desjardins and Master Corporal Demers, Master Corporal Demers told him that Corporal Desjardins had in fact made photocopies. How could she have said that if, as she says, she did not know what Corporal Desjardins was doing, even though she was sitting in front of her for 20 to 25 minutes’ time. The least that can be concluded from the evidence as a whole is that she gave Corporal Desjardins her tacit permission to make photocopies, even if we reject the accused’s account on this point. The testimony of Master Corporal Demers is, however, generally credible and not disputed. [28] Sergeant Trudel testified honestly and to the best of his knowledge, even though he was evidently nervous. His testimony is not disputed and is generally reliable. [29] The role of Petty Officer First Class Roy in this case is crucial. Had it not been for his approaching Master Corporal Demers, the events that followed the disappearance of the documents would not have taken place. However, he has no personal interest in the accused being convicted or acquitted. He testified directly and never appeared evasive. He did not attempt to justify his actions or the actions of his employee, Master Corporal Demers. His testimony was credible and reliable.
Page 12 of 14 [30] Corporal Ouellet was a reliable and honest witness. Her testimony simply illustrates and corroborates the fact that Corporal Desjardins had scattered a number of documents around when she was making photocopies, and that she told her not to forget her papers, that had been left on or near the photocopier, as she was passing by. Corporal Ouellet had the impression that Corporal Desjardins was in the process of picking up her documents, but she did not elaborate on that question, and was not invited to do so. Her testimony, however, does not corroborate the account given by the accused in respect of the emotional state she was in while she was busy making photocopies. Analysis of the law having regard to the facts The 1st count (paragraph 125(c) of the National Defence Act) [31] With respect to the 1st count under paragraph 125(c) of the National Defence Act, the only issue relates to the essential element consisting of intent, or the requisite mens rea. The prosecution relied primarily on the circumstantial evidence supplied, in particular, by a statement made by the accused to her superior when she returned from the reports room after consulting her personal file, which was that her “[TRANSLATION] file is clean”. The prosecution also relied on certain contradictions or discrepancies between the testimony given by Master Corporal Demers and the testimony of Corporal Desjardins, which, it submitted, had a significant impact on the credibility of the accused as support for her position. The Court is satisfied that the evidence shows beyond a reasonable doubt that the accused knowingly removed the documents described in the first count from her personal file. However, the Court has a reasonable doubt as to the essential element that consists of the intent to deceive. If the Court were to find otherwise, it would have to reject the accused’s account completely, and that is a step that the Court cannot take, having regard to the evidence as a whole. The account given by the accused indicates that she was extremely annoyed to see the documents in question in her personal file. She wanted to have them removed from her file. She had obtained information to that effect from the privacy office, and she wanted to challenge this situation by approaching the people responsible for the reports room in Montréal, where her personal file was kept permanently. If she had wanted to make away with those documents in order to deceive the military authorities, why would she have made copies, or even taken the originals to take them to Montréal in order to argue her point with the authorities? It would have been much easier to destroy them on the spot, right at the time when she was left to her own devices while she was making photocopies. Even if the evidence had established beyond a reasonable doubt that Corporal Desjardins had the intent of taking the originals in order to submit them to the authorities in the reports room and challenge their presence in her personal file, the Court could not have found, on that evidence, that such a manoeuver amounted to “making away with, with intent to deceive”. Although the concept of “making away with” includes removing from view, removing or concealing, the offence with which the accused is charged requires that the act have been committed with intent to deceive. It cannot be established beyond a reasonable doubt, based
Page 13 of 14 on the circumstantial evidence on which the prosecution relies, having regard to the evidence accepted by the Court, that the act committed by the accused would have permanent consequences for the existence of the documents and their presence in Corporal Desjardins’ personal file. Accordingly, the Court has a reasonable doubt, and the Court must give the accused the benefit of that doubt. The 2nd count (section 129 of the National Defence Act) [32] With respect to the 2nd count, the Court noted earlier that defence counsel seemed to be admitting that the actus reus of the offence had been proved, while adding that the prosecution had not discharged its burden of proof regarding the standard required of a person in these circumstances. The Court added that it was not persuaded, however, that the defence was going that far, if we considered the defence submissions in their entirety. With respect to the essential element of this charge relating to the prejudice to good order and discipline, the prosecution had to prove beyond a reasonable doubt that there was an objective standard of conduct that the accused was required to meet. First, the prosecution tried to establish the standard of conduct that the accused was required to meet through the evidence given by Master Corporal Demers and Petty Officer First Class Roy regarding the handling of and access to personal files by administration clerks and the people authorized to consult the documents that make up those files. The prosecution also attempted to establish the minimum standard of care that a person had to meet when he or she handled personal files, to make copies or otherwise, by having the accused acknowledge that she should have been more careful in handling her personal file. The defence, on the other hand, submitted that a standard of conduct for the handing and photocopying of documents cannot be imposed on someone for whom that is not his or her primary duty. [33] Having regard to the evidence heard, what standard was the accused subject to in the circumstances of this case? To answer that question, we should go back to the details of the charge to which the 2nd count relates, which alleges that the accused failed to put specific documents, relating specifically to a recorded warning she had received in 1997, that is, the recorded warning itself and the document entitled “Correction of Deficiencies”, back into her personal file. Accordingly, in the context of this case, the prosecution alleged that the accused had failed to put the recorded warning and the document entitled “Correction of Deficiencies” back in the file. Canadian Forces Administrative Order 26-17, of which the Court took judicial notice under Rule 15 of the Military Rules of Evidence, specifically provides that a recorded warning shall remain permanently on a member’s unit personal file. Notwithstanding the opinion of the accused to the contrary, Master Corporal Demers directly and expressly informed Corporal Desjardins of that order and that fact. The standard of conduct that the accused was required to meet in the circumstances is therefore nothing other than the standard that requires that a recorded warning or document relating to it shall remain permanently on the file. Although simply photocopying the original of a document like that and putting it immediately back in the file would not deprive its presence in th file of its
Page 14 of 14 permanency, the corollary to that standard of conduct is that any individual who handles documents of that nature must take minimum measures to ensure that they are not damaged, lost or destroyed. If the accused was to upset to preserve the permanency of those documents, by failing to take the necessary and minimum measures to preserve them, and if that is why the originals were found in a bag at her home, that is not an excuse. There is in fact abundant evidence to establish that the accused acted with neglect and without order by failing to act with a minimum of care or caution. Based on her over 20 years of military experience, there is no doubt that she knew the importance of her personal file and that she failed to be concerned about the risk and the need to take appropriate care in handling her personal file. The fact that she was angry as a result of the presence of the documents in question in her personal file is not sufficient, in the absence of any other evidence, to negate mens rea. Based on the evidence heard before this Court, including the accused’s testimony, the Court is satisfied that she had the requisite capacity to assess the risks or consequences of negligent handing of documents that were required to remain permanently on the file. The Court is satisfied, in the circumstances, that the accused’s neglect was to the prejudice of good order and discipline. [34] If it had been possible, on the evidence, to find beyond a reasonable doubt that she had made the decision to take those documents temporarily and without authorization in order to take them herself to the reports room in Montréal, that would have been a much more serious violation of the standard of conduct she was required to meet in the circumstances. However, this was not proved beyond a reasonable doubt. Disposition [35] Corporal Desjardins, please rise. For the reasons given by this Court, you are found not guilty on the first count and guilty on the second count. LIEUTENANT-COLONEL M. DUTIL, M.J. Counsel: Major M. Trudel, Regional Military Prosecutor, Eastern Region Counsel for the prosecutor Major L. Boutin, Directorate of Defence Counsel Services Counsel for Corporal Desjardins
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