Cour martiale

COURT MARTIAL

 

Citation: R. v. Bannister, 2018 CM 3003

 

Date: 20180227

Docket:  201714

 

Standing Court Martial

 

Her Majesty’s Canadian Ship Queen Charlotte

Charlottetown, Prince Edward Island, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Captain T.J. Bannister, Accused

 

 

Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J.

 

REASONS FOR FINDINGS

 

(Orally)

 

[1]               Captain Bannister is charged with three offences for having allegedly behaved in a disgraceful manner contrary to section 93 of the National Defence Act (NDA) and alternately he is charged with three offences for conduct to the prejudice of good order and discipline contrary to section 129 of the NDA.

 

[2]               Those offences are related to three different alleged incidents; the first one would have allegedly occurred in March 2013 at Queen Charlotte Armouries in Charlottetown, Prince Edward Island with the first complainant. The second one would have allegedly taken place in Montreal, province of Quebec and would have involved the same first complainant. And finally the third incident would have allegedly occurred again at or near Queen Charlotte Armouries in Charlottetown, Prince Edward Island with the second complainant.

 

[3]               Those three different alleged incidents refer to the conduct of the accused where he would have said some specific words in the presence of some persons, obviously which would include the complainant.

 

[4]               The trial commenced on 15 January 2018, and the prosecution called its first witness on that day; however, a disclosure issue arose from her testimony. Counsel worked around that issue without delaying the trial. On the fourth day of hearing, defence counsel informed the Court that he was about to receive information that could potentially contradict prosecution witnesses, including the one currently testifying before the Court. The Court adjourned the proceedings to the day after at the request of the defence counsel in order to allow him to inquire about the very nature of the information. On the fifth day of hearing, defence counsel disclosed the information he received to the prosecutor. Additional discussions led the prosecution to request the Court to adjourn the trial for an additional four days in order to allow an additional investigation to take place on the matter. The Court granted the adjournment. On the last day of the hearing, the prosecution told the Court that she did not intend to present any additional evidence about the fifth and sixth charges and the prosecution closed its case. The prosecution called a total of three witnesses and the affidavit of Petty Officer 1st Class Boutin was introduced as an exhibit.

 

[5]               Captain Bannister did not call any witnesses. Ten exhibits were introduced by both parties which would include some documents and pictures. The parties also agreed on some facts and made admissions, which read as follows:

 

“At all material times, Captain Bannister was the Commanding Officer (CO) of 148 Royal Canadian Army Cadet Corps (148 RCACC). He was the Commanding Officer between the 30 October, 2012, and 20 April 2016.

 

148 RCACC is parading at Queen Charlotte Armouries, located at 1 Haviland St, Charlottetown, Prince Edward Island.”

 

“At all material times, relevant to charges 3 and 4, Captain Bannister was in charge of the Prince Edward Island Army Cadets Ottawa Tour (Ottawa Tour) that happened from 6 to 11 May 2015. He was present on the Ottawa tour and was on duty.”

 

[6]               In the course of the trial, the accused, also through his counsel, admitted his identity on all charges before the Court, thereby dispensing with the requirement of the prosecutor to prove this element of the offences.

 

[7]               Finally, the Court took judicial notice of the content of the Cadet Administrative and Training Orders 13-24 (CATO), Harassment Prevention and Resolution, and of the articles 1.21 and 1.22 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) as they were prior to 1 August 2015.

 

[8]               The first and second incidents are related to charges 1 to 4 and involve Miss MacKinnon as the alleged victim. She joined the 148 RCACC when she was 13 years old. She was interested with music in the Cadet Corps, and made a number of other activities throughout the years with this Unit. She left this Cadet Corps at the age of 19 years old at the rank of Chief Warrant Officer and as the Regimental Sergeant-Major (RSM). She was appointed in that position about three months before aging out in June 2014. Later, in 2014, she enrolled as a Cadet Instructor Cadre (CIC) officer with another Cadet Corps. Miss MacKinnon met the accused, Captain Bannister, first in the Cadet Corps as a civilian instructor when she joined.

 

[9]               In accordance with her testimony, she was appointed as the RSM of that unit in February-March 2014 and reported directly to the commanding officer (CO), Captain Bannister, who is the accused in this matter. On a Sunday in the month of February or March 2014, while the music band was practising, she filed some paperwork in the CO’s office in order to become a CIC officer. Suddenly, out of the blue, Captain Bannister would have said to her, in the presence of another person, “Do you want to fuck me on my desk?” She said that he caught her off guard. She did not reply and she told the Court that she never expected such a comment. From her perspective, before that comment, she knew Captain Bannister as being somebody supportive to her more than anything else. He told her that she looked uncomfortable and that she had to get used to it if she wants to become a CIC officer. She told the Court that she understood she had to get used to that kind of talk. She left the office and the other person present with her told her that he was very shocked by that. While she did not know if it changed clearly anything to her relationship with her commanding officer, she felt some discomfort toward and during the last few months she spent after, at the unit.

 

[10]           In May 2015, Captain Bannister was in charge of the Prince Edward Island Army Cadets Ottawa tour. Miss MacKinnon was part of the staff for cadets as a CIC officer. She was supervising cadets on this trip. They travelled mostly by train. On the way back from Ottawa, they had to switch trains in Montreal. She was fearing not to meet the timings or to forget any cadet. She got nervous, started to panic and cried. Captain Bannister was there and he tried to calm her down. He told her to calm down and breathe. All of a sudden, he told her, “Let’s have sex.” Stupefied by such words used by Captain Bannister, she said, “Excuse me?” According to her, Captain Bannister replied, “I’m just trying to lighten the mood.” She replied that “It was just not funny.” She clearly stated to the Court that she was not expecting such a comment. For this incident, nobody else was present. She told the Court that she was irritated and angry by this incident.

 

[11]           Another witness, Major Enman, testified as a person who took over from Captain Bannister when he was removed from his commanding officer’s position and put under investigation. She told the Court that people at the unit were concerned about the reasons she was taking over and on the impact she could have on operations of the unit. There was tension because of the presence of a new commanding officer but there was nothing more, she said. She also testified before the Court that CIC officers learned about CATO on the training officer course. She mentioned that there is annual training for all staff and cadets on interaction between people at the cadet unit. She also told the Court that there is online training available for CIC officers about inappropriate conduct and commands. She told the Court she collected statements from various people concerning complaints against Captain Bannister as she was instructed by her superior.

 

[12]           Finally, Miss Gallant testified about the third incident related to charges five and six. She told the Court that she joined the cadets in 2010. In June 2015, she was 17 years old and she was still part of 148 RCACC as a cadet. She had known Captain Bannister for about five years. On prom day, she went outside of the armoury with other fellow cadets being also part of the prom day in order to take pictures with Captain Bannister as a souvenir. It is while taking an individual picture with Captain Bannister that the latter would have allegedly said inappropriate comments. However, Miss Gallant has no memory of that comment and could not tell the Court what she heard. It appears that some other people, according to her, heard the comment and she was told by her mother later on that day.

 

[13]           She felt embarrassed when she learned about it, degraded and singled out by the comment of a sexual nature made by Captain Bannister. She lost interest in cadet programmes and distanced herself from them. She also told the Court that this matter impacted her mental health.

 

[14]           Before this Court provides its legal analysis, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt as a standard that is inextricably intertwined with the principle fundamental through all Code of Service Discipline and criminal trials and these principles, of course, are well known to counsel, but other people in this courtroom may be less familiar with them.

 

[15]           The first and most important principle of law applicable to every Code of Service Discipline and criminal case is the presumption of innocence. Captain Bannister entered these proceedings presumed to be innocent and the presumption of innocence remains throughout the case unless the prosecution, on the evidence put before the Court, satisfies it beyond a reasonable doubt that he is guilty.

 

[16]           Two rules flow from the presumption of innocence: one is that the prosecution bears the burden of proving guilt and the other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.

 

[17]           The burden of proof rests with the prosecution and never shifts. There is no burden on Captain Bannister to prove that he is innocent. He does not have to prove anything.

 

[18]           Now, what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on a reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

 

[19]           It is virtually impossible to prove anything to an absolute certainty, and the prosecution is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. The Court must not find Captain Bannister guilty unless it is sure he is guilty. Even if the Court believes that he is probably guilty or likely guilty, that is not sufficient. In those circumstances, the Court must give the benefit of the doubt to Captain Bannister and find him not guilty because the prosecution has failed to satisfy the Court of his guilt beyond a reasonable doubt.

 

[20]           The important point for the Court is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence. The Court must decide, looking at the evidence as a whole, whether the prosecution has proved Captain Bannister’s guilt beyond a reasonable doubt.

 

[21]           Reasonable doubt applies to the issue of credibility. On any given point, the Court may believe a witness, disbelieve a witness, or not be able to decide. The Court need not fully believe or disbelieve one witness or a group of witnesses. If this Court has a reasonable doubt about Captain Bannister’s guilt arising from the credibility of the witnesses, then it must find him not guilty.

 

[22]           About the evidence, it is important to say that the Court must consider only the one presented in the courtroom. Evidence is the testimony of witnesses and things entered as exhibits, including documents and pictures. It also comprises admissions. The evidence includes what each witness says in response to questions asked. Only the answers are evidence. The questions are not evidence unless the witness agrees that what is asked is correct.

 

[23]           Captain Bannister is charged with having behaved in a disgraceful manner at three different times contrary to section 93 of the NDA. This provision reads as follows:

 

93.  Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

 

[24]           With respect to these charges, the prosecution does have to prove beyond a reasonable doubt, in addition to the identity, the date and place that the accused’s conduct was disgraceful.

 

[25]           As I said in my decisions of R. v. Larouche, 2012 CM 3009, R. v. Morel, 2014 CM 3011, R. v. Lloyd-Trinque, 2015 CM 3001, R. v. Jackson, 2017 CM 3001 and, as well, described by Pelletier MJ in his decision on the verdict delivered in the fall of 2017 in the court martial R. v. Buenacruz, 2017 CM 4014 at paragraphs 80 to 83, in order to prove that the conduct of the accused was disgraceful, an objective test based on harm must be applied, which would include the following two steps:

 

(a)                First, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society, which includes the Canadian Armed Forces, in a way that undermines or threatens to undermine a value reflected in and, thus, formally endorsed through the Constitution or similar fundamental laws of Canada; and

 

(b)               Second, the harm or risk of harm is of a degree that is incompatible with the proper functioning of society which includes the Canadian Armed Forces.

 

[26]           I would add that the purpose of such tests is to avoid the situation where the trier of facts, here, the military judge, uses his personal convictions to determine what is disgraceful or not, or to determine what are the moral values to make such determination.

 

[27]           Captain Bannister is charged with three charges referring to the offence of conduct to the prejudice of good order and discipline. This offence is enunciated at section 129 of the NDA and reads in part as follows:

 

(1)     Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

 

(2)     An act or omission constituting an offence under section 72 or a contravention by any person of

 

(a)     any of the provisions of this Act,

 

(b)     any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or

 

(c)     any general, garrison, unit, station, standing, local or other orders,

 

                is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

 

[28]           Section 129 of the NDA does not create two offences, namely, one under subsection 129(1) and another under subsection 129(2). Subsection 129(1) of the NDA simply tells us that any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence. Generally speaking, proof of prejudice to good order and discipline beyond a reasonable doubt is required, although this proof of prejudice can sometimes be inferred from the circumstances if the evidence clearly points out to prejudice as a natural consequence of the proven act.

 

[29]           Subsection 129(2) of the same Act, tells us that, in specific conditions, prejudice of good order and discipline is deemed to have occurred. A deeming provision is a statutory fiction. As a rule, it implicitly admits that a thing is not what it is deemed to be, but decrees that for some particular purpose, it shall be taken as if it were that thing, although it is not or there is doubt as to whether it is. The particulars of the charges do engage this presumption and the Court will consider it.

 

[30]           The prosecution must prove beyond a reasonable doubt that Captain Bannister is the author of the alleged offences on the date and at the place described in the particulars of each charge. The prosecution must also prove each of the following additional essential elements beyond a reasonable doubt: that Captain Bannister conducted himself as it is alleged in the charge; that the consequence of the proven conduct is prejudicial to good order and discipline; and the blameworthy state of mind of Captain Bannister.

 

[31]           The prosecution told the Court that if it did not find Captain Bannister guilty of that charge by using the deeming provision of subsection 129(2) of the NDA, it could still go on to do an analysis of the evidence on the essential element of prejudice provided at subsection 129(1) of the NDA and it made further reference to the Court Martial Appeal Court decision in R. v. Golzari, 2017 CMAC 3. On that very issue, Sukstorf MJ made comments in her decision of R. v. Rollman, 2017 CM 2005 at paragraphs 74 to 84 as follows:

 

[74]         Case law is clear that proof of prejudice is an essential element of the offence and must be proved beyond a reasonable doubt. I refer to Heneghan J.A. in the CMAC decision of R. v. Tomczyk, 2012 CMAC 4 at paragraph 25, while quoting Winters, he said:

 

[25]         Proof of prejudice is an essential element of the offence. The conduct must have been actually prejudicial (Winters, supra, paras. 24–25). According to R. v. Jones, 2002 CMAC 11 at para. 7, the standard of proof is that of proof beyond a reasonable doubt. However, prejudice may be inferred if, according to the evidence, prejudice is clearly the natural consequence of proved acts; see R. v. Bradt (B.P.), 2010 CMAC 2, 414 N.R. 219 at paras. 40–41.

 

At paragraphs 76 and 77 of Golzari, Mosley J.A. addressed the proof of prejudice in referring to the CMAC decision of Jones:

 

[76]         However, a close reading of Jones demonstrates that the Court was careful to emphasize that prejudice need not be confined to a physical manifestation of injury to good order and discipline. At paragraph 7, the Court stated:

 

Proof of prejudice can, of course, be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. The standard of proof is, however, proof beyond a reasonable doubt.

 

[77]         This language suggests that prejudice will be proved, beyond a reasonable doubt, so long as the totality of the circumstances supports the finding that the conduct in question would likely result in prejudice to good order and discipline. Since the Court in Jones left the window open to infer prejudice from the circumstances, I agree with the Appellant that “prejudice” encapsulates conduct that “tends to” or is “likely to” result in prejudice.

[Emphasis in original.]

 

[75]         Further, after a review of the meaning of the word “prejudice”, Mosley J.A. concluded the following:

 

[78]         Prejudice in its ordinary grammatical sense means “harm or injury that results or may result” (Concise Oxford English Dictionary). The addition of the words “to the” before “prejudice” incorporates an element of risk or potential and the expression, read as a whole, does not require that harmful effects be established in every instance. Though evidence of actual harmful effects may exist, it is not required for conduct to be punished in the context of military discipline. Military discipline requires that conduct be punished if it carries a real risk of adverse effects on good order within the unit; this is more than a mere possibility of harm. If the conduct tends to or is likely to adversely affect discipline, then it is prejudicial to good order and discipline.

 

[76]         In its Golzari decision, Mosley J.A. writing for the CMAC commented only briefly at paragraph 68 that although the Court was not required to consider the respondent’s second argument, he would comment very briefly on it. I view much of what follows as obiter statements. The specific paragraph that prosecution seeks to rely upon is that of paragraph 79, which reads as follows:

 

[79]         I also agree with the Appellant that in most instances, the trier of fact in a Court Martial should be able to determine whether the proven conduct is prejudicial to good order and discipline based on their experience and general service knowledge: Smith, above, at 164.

 

[77]         The brief comments of the Mosley J.A. regarding prejudice must be considered in light of the earlier CMAC jurisprudence on this issue. The statements at paragraphs 79 - 81 provide tidy and succinct suggestions to the effect that a trier of fact, applying his or her own military experience and general service knowledge could determine whether proved “conduct tended to adversely affect good order and discipline”.

 

[78]         Although the defence and prosecution have taken different approaches to interpreting this obiter statement, this Court interprets paragraph 79 as a powerful reminder that the application of military experience and general service knowledge can be relied upon in proving section 129 offences. However, in the view of this court, if a trier of fact wishes to rely upon such experience and knowledge, it must be done in accordance with the law of evidence.

 

[79]         Much of the concern with the wider interpretation advanced by the prosecution is the uncertainty that exists if the trier of fact relies upon his or her own subjective experience and general service knowledge in order to infer an essential element of an offence. An accused cannot be left in the unfair position of having to speculate on what fact, matter, custom or general military knowledge as evidence that the trier of fact might rely upon in order to convict him. An accused must have all the legal evidence adduced before him in court to ensure that he is given the opportunity to meet, explain or contradict this evidence and to determine on what grounds he should argue his defence. No interpretation of the law may limit this principle.

 

[80]         As we know, a judge may only rely upon the evidence before the Court, whether real, testimonial, direct or circumstantial, etc., or evidence by way of judicial notice that meets the requirements of the MRE or the common law rules of evidence. It is considered to be an error of law when a judge, through his or her own independent research and study, finds new information, or cases and without seeking submissions from counsel, he then applies them to the case before him.

 

[81]         The brief comment of Mosley J.A. must therefore be considered in light of the above principles. In the view of this Court, the obiter comment in Golzari made in the context of very different facts, is not a licence for myself, as a trier of fact, to augment the evidence before the court, by relying upon my subjective general service knowledge and experience.

 

[82]         In making his comment at paragraph 79, Mosley J.A. references the CMAC decision of Smith. In Smith, although there were a number of issues on appeal, the one relied upon in Golzari was the appellant’s argument that the Court failed to comply with the judicial notice provisions under the MRE. However, in rendering its decision, the CMAC panel in Smith stated at paragraph 12 of its decision, that it had “read the record with great care and was unable to find that during the hearing of the evidence any question arose as to whether the Court could or could not take judicial notice of matters of general service knowledge.” However, at paragraph 25, the Court also found that it was “abundantly clear that each ingredient of the charge was fully established by the evidence of Crown witnesses and not denied by the appellant or his witnesses.” As such, it was clear that on the facts of the Smith case, the trier of fact did not have to rely upon an inference drawn from its own general service knowledge, but rather there was specific evidence before the Court upon which the decision could be made.

 [Emphasis in original.]

 

[83]         There is nothing new here. One of the ways in which matters of general service knowledge can be specifically relied upon by a trier of fact is through the taking of judicial notice under the MRE. Judicial notice in the context of a court martial is codified in the MRE and permits the trial judge to take into consideration all matters of general service knowledge as well as a range of other facts and propositions of general knowledge. Judicial notice is the acceptance by the court, without the requirement of proof, of any fact or matter regarding general service knowledge that is so generally known and accepted in the military community that it cannot be reasonably questioned, or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned. Even where judicial notice has been taken, the trier of fact must be careful to limit it to matters of general knowledge or facts known to the “ordinary” military person and is not entitled to apply knowledge that he or she might have by reason of a military specialty or personal experience.

 

[84]         However, the propriety and competence of the Court to take judicial notice is not absolute. Following the SCC’s decision in Spence, the strictness of the analysis in the test for judicial notice varies with the centrality of the issue. In other words, the closer the fact is to the centre of the controversy, the more stringent the test. What this means is that although the Court may take judicial notice of matters of general service knowledge and experience, given that prejudice is an element of the offence that must be proved beyond a reasonable doubt, the Court must exercise extreme caution and apply the strictest test.

 

[32]           On these words of Sukstorf MJ, I would say that I agree with her comments on that very specific issue.

 

[33]           My analysis concerning the offences. First, I would like to say, concerning the fifth and the sixth charges, that I have to conclude that there is not much evidence of the conduct alleged on these two charges. Other than knowing that a disturbing comment of a sexual nature was allegedly said to Miss Gallant, there is no evidence of what was exactly said by Captain Bannister to her. In these circumstances, without looking at the other essential elements, the Court concludes that the prosecution has not proved beyond a reasonable doubt all the essential elements of these two offences, and, as suggested by the prosecutor, Captain Bannister must be acquitted on those charges.

 

[34]           The charges about disgraceful conduct go to the first and the third charges on the charge sheet. The prosecution took the position that the comments made by Captain Bannister were inappropriate and shocking and that they constitute disgraceful conduct as a whole in itself. To the contrary, defence counsel said that the nature and degree of the conduct do not meet the legal requirement for making each incident a disgraceful conduct.

 

[35]           The essential elements of the identity, date and place are not an issue except for the first charge with respect to the date. I will focus, mainly, on my comments on whether the alleged conduct is disgraceful or not before talking about the date on the first charge. Otherwise, there is no controversy on all other essential elements from my perspective.

 

[36]           In both instances, Captain Bannister made comments that were very awkward, meaning that he caused embarrassment to the person he directed them to. However, in each context, the purpose of using such short wording was to get the attention of the person or the receiver of the message. Clearly the victim of those remarks got the intended message by the use of these words in the context described, but clearly also felt embarrassed by that.

 

[37]           The Court can clearly see that it was embarrassing and can understand such a reaction by Miss MacKinnon. The Court comes to the conclusion that the prosecution did not prove beyond a reasonable doubt that, by its nature, the conduct of Captain Bannister in both instances, on both charges, presented a significant risk of harm to Miss MacKinnon in a way that undermined the respect of her dignity. In each context or each incident, the purpose of the comment was to surprise her in order to bring her attention to another issue. She said that she was concerned by the attitude of Captain Bannister, that she took a distance from him after the first incident, but she never said or gave the impression to the Court that her integrity or dignity as a person had been harmed by those specific comments. She is the one who told the court the meaning of the message intended behind these very awkward comments.

 

[38]           Concerning the first incident, the message was to get used to that type of language if you become a CIC officer and, she told the court that during the second incident, the purpose of the message was to calm down, to stop panicking.

 

[39]           With respect to the conduct of the prejudice of good order and discipline, as I mentioned, the main issue to decide on charges two and four is the existence of prejudice. There is no reason, as a matter of credibility, to doubt that the words reported by Miss MacKinnon are not credible or reliable. In fact, I do not dispute her credibility or reliability in this matter. It is more a question if a prejudice of good order and discipline has been proved beyond a reasonable doubt.

 

[40]           So, as I mentioned earlier in my decision, first I will address the deeming provision under subsection 129(2) of the NDA. In order to succeed, the prosecution has to prove the existence of a standard, the notification of it and that the accused acted contrary to that standard. If proof beyond a reasonable doubt has been established by the prosecution on those three items, then the deeming provisions can be applied as a matter of prejudice.

 

[41]           Subsection 51(1) of the NDA reads as follows:

 

All regulations and all orders and instructions issued to the Canadian Forces shall be held to be sufficiently notified to any person whom they may concern by their publication, in the manner prescribed in regulations made by the Governor in Council, in the unit or other element in which that person is serving.

 

The regulations refer basically to articles 1.20, 1.21, and 1.22 of the QR&O. So more specifically I will read article 1.21(2):

 

(2)     For the purposes of subsection 51(1) of the National Defence Act, QR&O, other regulations made under section 12 of the Act, DAOD and other orders and instructions issued to the Canadian Forces, or any part of them, shall be held to be sufficiently notified to any person to whom they concern if

 

a.        they are published

 

i.      electronically  . . .

 

ii.        in the case of orders and instructions that are not published on a defence website or a government website, in paper form or in electronic format; and

 

b.        . . . they are made reasonably accessible to the person and are drawn to the person’s attention by the commanding officer of the base, unit or other element at which the person is serving.

 

[42]           It must be said, as raised by defence counsel, that at the time of those two incidents, article 1.22 in relation to the government website or electronic notification could not apply because the only available option at that time as a matter of things being available electronically were the QR&O and there was no provision covering other orders, the DAOD or other instructions. So, at the time of the incident, the Court must not rely on electronic publication of the CATO, but on the paper version of it. Basically, what the Court takes from this article is it must be proven by the prosecution, as a matter of notification, that the CATO was received at the base, that the commanding officer brought to the attention of the members the CATO in question and that it was made available to the accused.

 

[43]           When I look at the evidence, there is no evidence of such matter. When I put myself at the time of the incident, meaning that between November 2012 and March 2013 or in May 2015, there is no evidence regarding notification. I do understand that there is evidence provided by the commanding officer who took over from Captain Bannister, that in 2016 there was access to CATO at the unit, but it’s not at the time of the incident itself. And, as I mentioned concerning the electronic accessibility, the validity of such provision started to be possible after 1 August 2015.

 

[44]           No matter what, it was possible for the prosecution to try to prove personal knowledge by Captain Bannister and, as such, the Court looked at the letter of Chief Petty Officer 1st Class Robinson. It is indicated in his letter that Captain Bannister completed and passed two things: the CIC Basic Officer Training Course, in-house, and the CIC Intermediate Officer Training Course. Also, the Court was provided, on consent, the training plan of these two courses that tell the Court basically about what must be covered. It is a training plan, what an instructor must cover.

 

[45]           From this evidence, the Court could see that it is possible that Captain Bannister was told about the specific CATO on harassment, but it takes more to establish personal knowledge or to establish that Captain Bannister ought to have known this specific CATO. The prosecution must establish certainty about his presence, when he was told about this specific CATO and must also establish certainty about what was covered in his presence. So, in these circumstances, the deeming provision is not applicable because the prosecution did not prove beyond a reasonable doubt notification to the accused of that specific CATO.

 

[46]           As suggested by the prosecution, it is open to this Court to see if it could infer from the circumstances that the conduct of Captain Bannister tended to adversely affect good order and discipline.

 

[47]           The Court does not deny that it is possible Captain Bannister knew the standards as a commanding officer. However, there is no evidence establishing with certainty that he knew. It is possible also that he underwent annual training as established by one witness, but there is no evidence that he participated actively in this annual training at all. When I look at the evidence put before the Court, there is not much evidence on the harm or real risk of harm caused by his behaviour on good order and discipline. There is no evidence that would lead the Court to conclude beyond a reasonable doubt that his conduct tends to adversely affect good order and discipline. There is no evidence on the impact to members of the unit or other officers. I do not deny that there is evidence that impacted on Miss MacKinnon, but there is no impact described by anybody about what his conduct had on the unit, on other officers or any evidence that he intended to do so. Mainly what the Court understood, what caused the main disturbance at the unit was the fact that Captain Bannister was removed and replaced.

 

[48]           Now, concerning the period of time the first incident allegedly occurs, concluding that there is no disgraceful behaviour of conduct to the prejudice of good order and discipline proved beyond a reasonable doubt by the prosecution, I do not intend to address this issue because it would be unnecessary in the circumstances. However, I would just like to mention the fact that I would have been open to consider a special finding on this issue.

 

[49]           I would like to say that, by its decision, the Court would like to specify that it does not approve of such conduct. By doing what you did, the Court is still concerned about such problematic behaviour. There are many other ways to get the attention of somebody other than using comments of a sexual nature directed specifically to a person, even if it is for a totally different purpose. As a reminder, the Court made this decision on all charges because the prosecution failed to prove all essential elements of each charge beyond a reasonable doubt, which is a very high and specific standard in our law.

 

[50]           As often heard recently in this Court, the Canadian Armed Forces has initiated a change of culture through Operation HONOUR and the Court hopes that it will reflect one day for the best of the Canadian Armed Forces members well-being.

 

FOR THESE REASONS, THE COURT:

 

[51]           FINDS Captain Bannister not guilty of disgraceful conduct on the first, third and fifth charges and not guilty of conduct to the prejudice of good order and discipline on the second, fourth and sixth charges.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major M.E. Leblond

 

Major J.L.P.L. Boutin, Defence Counsel Services, Counsel for Captain T.J. Bannister