Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Euler, 2021 CM 5019

 

Date: 20210429

Docket: 202001

 

Standing Court Martial

 

Halifax Courtroom Suite 505

Halifax, Nova Scotia, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Corporal P.J.M. Euler, Accused

 

 

Before: Commander C.J. Deschênes, M.J.

 

Restriction on publication: Pursuant to section 179 of the National Defence Act, the Court directs that any information obtained in relation to the proceedings of this Standing Court Martial that could identify anyone described in these proceedings as a victim or complainant, including the person referred to in the charge sheet as “M.L.”, shall not be published in any document or broadcast or transmitted in any way.

 

This order does not apply to disclosure of such information in the course of the administration of justice, when it is not the purpose of the said disclosure to make the information known in the community.

 

REASONS FOR FINDING

 

(Orally)

 

Introduction

 

[1]               Corporal Euler is charged with two offences. One charge relates to an alleged conduct contrary to section 93 of the National Defence Act (NDA) for behaving in a disgraceful manner, in that between 1 April and 1 August 2019, he touched the buttocks of M.L. without her consent. The second charge relates to an offence contrary to section 95 of the NDA, for the ill-treatment of a person who by reason of rank was subordinate to him. The charge alleges that, between 1 April and 1 August 2019, Corporal Euler did repetitively hug M.L. without her consent. Having heard the evidence from both parties, I must now determine if the prosecution has proven beyond a reasonable doubt all the essential elements of the offences.

 

Facts

 

[2]               At the material time in which the infractions were allegedly committed, both the accused and the complainant were serving in the Canadian Armed Forces (CAF) as cooks. The accused first met the complainant when they served together in the galley at 12 Wing Shearwater in 2018. He was then posted to the Juno Tower galley, commonly referred to as the Juno Galley, around Christmas time that same year. The complainant continued to serve in 12 Wing Shearwater until she was also posted to Juno Galley at the end of April 2019.

 

[3]               Juno Tower is a combined mess facility with dining and accommodations for CAF members. The Juno Galley is the only galley located in Juno Tower at Canadian Forces Base (CFB) Halifax. The galley is a fairly open-concept room that mostly offers unobstructed view to the room. Between ten and twelve people serve in the galley at the same time during any given shift. It is a hazardous place, where sharp knives, boiling water and deep fryers are being used. It is common practice for the staff to alert other staff nearby when using a dangerous galley item to raise awareness of their surroundings in order to prevent injuries.

 

[4]               When the complainant arrived in Juno Galley, she was an able seaman and the accused was a corporal occupying the role of i/c. The i/c is a more senior cook who is in charge, amongst other things, of the work assignments of subordinates in the kitchen. Although the evidence was not determinative as to whether the accused was the complainant’s direct supervisor in Juno Galley, the complainant was required to report to the accused when she needed to leave early. The accused was expected to lead and counsel the complainant, should issues related to work performance, assiduity and general deportment arise. During the summer of that same year, Private Hardiman was also serving in Juno Galley. As an untrained cook, Private Hardiman was required during her on-job training (OJT) to be under the constant supervision of a trained cook. As such, she served under the supervision of the complainant during this period.

 

[5]               The first day the complainant arrived at Juno Galley in April 2019, there was a friendly hug between her and the accused. Who initiated the hug, the time and exact location as well as what transpired during the following three months is disputed.

 

[6]               It is in July 2019 that the complainant brought the allegations that form the basis of the charges to the attention of a member of her chain of command, Master Corporal Nickerson. Shortly thereafter, the accused was called to his supervisor’s office. The accused was transferred to 12 Wing Shearwater the next day. He visited the Juno Galley afterwards on other occasions to speak with staff in the galley, but he did not speak to the complainant.

 

The issue

 

[7]               The issue in the case at bar turns on the credibility and reliability of the witnesses. Regarding the first charge, I must decide whether the prosecution has proven beyond a reasonable doubt that the accused did touch the buttocks of M.L. without her consent. For the second charge, I must decide if the prosecution has proven beyond a reasonable doubt that the accused did repetitively hug M.L. without her consent, and that he intended to do so. I must examine the theory of the defence and decide if the complainant had a motive to fabricate her allegations and testimony.

 

Position of the parties

 

Prosecution

 

[8]               The prosecution contends that this case is about a superior who abused his authority in order to violate the bodily integrity of a subordinate. The accused did so by using the appearance of friendliness to access the body of the complainant who is a shy and introverted person. The prosecution submits that this case turns on credibility and that the complainant’s version of the events is the most reliable and accurate; her evidence is further supported by the testimony of Private Hardiman. The prosecution lastly contends that the alleged conduct amounted to both an infraction of disgraceful conduct and an infraction of ill-treatment of a subordinate.

 

Defence

 

[9]               The defence contends this case turns on two central questions: did the accused touch the buttocks of the complainant, and did the accused repetitively hug the complainant? He submits that the testimony of Private Hardiman should not be considered because it is highly prejudicial, as it constitutes either similar facts evidence or proof of bad character of the accused. This evidence is inadmissible in accordance with rules 21 and 22 of the Military Rules of Evidence (MRE). The prosecution was required to present an application prior to introducing this evidence, and his omission to do so was fatal. Therefore, this evidence should not be considered.

 

[10]           He further explains that the accused and the complainant’s credibility and reliability are key to this case. The evidence shows that it would make it very difficult for the accused to have entered into this type of conduct without being detected. He submits that the complainant fabricated her allegations and her evidence because she is either acting in retaliation against the accused, or is attempting to shift the attention of the chain of command away from her in order to avoid facing disciplinary measures. The defence argues that these proceedings presume the accused’s innocence. His testimony is credible and should be believed. In a nutshell, the defence contends that this case is about the application of the R. v. W.(D.), [1991] 1 S.C.R. 742 test. In applying the test, the Court will find that the prosecution has not proven the alleged conduct beyond a reasonable doubt.

 

Evidence

 

Prosecution witnesses

 

Testimony of the complainant

 

[11]           The prosecution called two witnesses. The first witness was M.L., the complainant in this case. M.L. testified that she enrolled in the CAF in 2013 as a cook. She is currently on maternity or parental leave. In 2015, she was posted to the galley at 12 Wing Shearwater. Her tasks during her posting involved preparing and assembling food for lunch boxes. She explained that when she and Corporal Euler were working together in 2018 in 12 Wing Shearwater, they enjoyed a positive working relationship. The accused was nice to her, they were good friends; he would sometime startle her for fun. She describes him as being a “good guy”.

 

[12]           She testifies that, the day she arrived at Juno Galley at the end of April 2019 to report to her new posting, the accused greeted her with a friendly hug. She was comfortable with the gesture, as she saw it as a way to welcome her to her new workplace following months of not having seen each other. The next day, the accused greeted her with another hug. She describes this second occurrence as being strange, but at the time she did not say anything. In the days and weeks following, she explains that the pattern continued on a daily basis as the accused would just grab her for a hug in the workplace at Juno Tower. In recounting the events, she testified becoming uncomfortable, but as the conduct only involved hugging at the time, she dealt with it and said nothing. As the pattern of conduct progressed, she describes specific incidents, two of which she found particularly troubling.

 

[13]           The first incident happened in the kitchen. The accused asked her if she needed a hug and, without waiting for an answer, he grabbed her. The front of his body was touching hers, and he was using “hard pressure” when hugging her, to keep her upper body firmly pressed against his; she describes his hips being “glued” to hers. At the same time, Corporal Euler was rubbing her neck, her back, and then the top of her buttocks with both hands. When prompted by the prosecutor to provide additional details on the area of the buttocks she was referring to, she explained that she meant halfway down the buttocks. The accused also moved his hands to the side of her upper body just below the armpits, close to her breast area. She describes feeling uncomfortable with the accused’s conduct. She testifies that the accused said words to the effect of “You like it”. At this moment, she told him, “Please stop” and managed to wiggle her way out of his embrace by pushing him away. This occurrence lasted around ten seconds.

 

[14]           She described a second incident that occurred one to two months later in the back room, close to the changing room in Juno Tower. The accused grabbed her to hug her and applied hard pressure to press her body onto his while rubbing the middle part of the buttocks area and the side of her breasts with both hands. She testified that once again, she asked the accused to stop; however, he released the pressure exerted only as she wiggled her way out. This similar incident also lasted about ten seconds. The accused did not say anything at that time. His conduct left the complainant feeling uncomfortable and frustrated because it happened a second time.

 

[15]           She described another physical contact that occurred between the two incidents, while she was working “on the line”. She testifies that while passing behind her, the accused hit her buttocks with a clipboard. She believed it was not an accidental touch because of the pressure that was applied. The accused did not say anything because he kept walking past her. She also felt uncomfortable with this contact.

 

[16]           She testified that following the two incidents involving hugging, the accused told her that he had plans to go to a hotel on the weekend and invited her to join him, saying that it would make her feel happy. She assumed that he was not making a joke.

 

[17]           She described yet another incident when she went to see the accused in his capacity as i/c, to inform him that she was feeling unwell. At this moment, with his right hand, he reached to grab her hip or buttocks. She tried to move aside. The accused then said, “I can make you feel better.” She asked him to stop. She did not physically push him. This incident was not followed by other similar conduct for about one month.

 

[18]           The day before she reported the allegations regarding the accused’s conduct, she described a last incident where the accused rubbed her neck and back while he was having what she described as a “seducing face”. This incident happened in the presence of, and was witnessed by, Private Hardiman while they were in the baking section of Juno Galley (bake shop).

 

[19]           The pattern of conduct described by the complainant lasted between one to two months. As she had decided to deal with the conduct on her own, she did not say anything until the last incident in the presence of Private Hardiman in the bake shop. She finally reported the allegations the next day to a master corporal whom she referred to as “Joey”, because she did not remember his last name. Following the reporting, the accused was sent to 12 Wing Shearwater in July 2019 as a result of the complaint.

 

Testimony of Private Hardiman

 

[20]           Private Hardiman also testified. She explained that during the summer of 2019, she was working in the bake shop of Juno Galley, given tasks on a daily basis. Since she was an untrained cook on OJT, she worked with the complainant for a period of six weeks. Private Hardiman testified that, while she and the complainant were in the bake shop sometime in July 2019, she saw the accused come behind the complainant and rub the complainant’s shoulders and the back of her neck. Private Hardiman heard the complainant asking the accused to stop, to which the accused answered, “You like it,” before he stopped. The touching lasted about thirty seconds. She explained seeing the complainant visibly uncomfortable. She talked to the complainant about the incident afterwards. It was apparent that M.L. was nervous. In cross-examination, Private Hardiman explained that during the months of June and July 2019, she worked alongside the accused and the complainant because she had to be supervised at all times as an untrained cook when performing her tasks. The witness also said that the complainant was a friend. During the cross-examination, she explained that she never saw the accused hug or touch the buttocks of the complainant. Private Hardiman denies the proposition that, on the occasion she saw the accused touching the complainant in the bake shop, the accused was only grabbing her shoulder to get her attention while he was disciplining both of them for leaving during rush hour. Private Hardiman rather remembered the accused touching the complainant inappropriately during this incident in the bake shop.

 

Defence witnesses

 

Testimony of Petty Officer, 2nd Class Dumas

 

[21]           The defence called Petty Officer, 2nd Class Dumas. Petty Officer, 2nd Class Dumas enrolled in the CAF in November 1980, and after releasing, he re-enrolled in the reserve force. He was the supervisor of both galleys at Juno Tower and 12 Wing Shearwater in 2019. He testified knowing both the accused and the complainant, as he was their supervisor. His relationship with the accused and the complainant was strictly professional in nature. He explained that, during the material time, the complainant was deemed to be a “problem child”. This label was attributed to her because the completion of her qualification level 5 (QL5) was constantly delayed as a result of maternity and parental leave she had taken over the course of her young career. In fact, Petty Officer, 2nd Class Dumas added that it took the complainant thirty months longer than the typical duration to complete her QL5. He believes that as a result, during this period, M.L. was probably under pressure to complete her training. This situation caused some frustrations to her chain of command. In light of her slow or hindered career progression, a meeting was held to discuss whether the chain of command should impose the obligation for M.L. to recommence her qualification training from the beginning. Eventually, this option was not accepted and M.L. was allowed to continue her training from her latest training progress.

 

[22]           Petty Officer, 2nd Class Dumas also explains that during shifts, Juno Galley is a hazardous and busy workplace with up to twenty personnel working on the same shift, depending on the schedule. Good communication amongst staff working on the line is critical for safety concerns in order to prevent injuries. When asked about the complainant’s performance and work ethics, he testified that he never received complaints about her. He also said that she never looked uncomfortable or intimidated by the accused. He observed the accused behaving normally with the complainant; he did not witness any inappropriate conduct on the part of Corporal Euler nor did he hear the accused make sexual comments to M.L.

 

[23]           In cross-examination, he further explained that the expression “problem child” is an unfortunate and poor choice of words, commonly used to refer to any member who experiences professional or personal disruptions that would cause a longer-than-usual period for the completion of their qualification, slowing their career progression. He explains that he tried to support and encourage the complainant to actively pursue her training in order for her to obtain her promotion to the next rank. He testified that no administrative measures were ever imposed on her, and that there was no management nor behavioural issue. He confirms that it is possible that the accused engaged in sexual misconduct with the complainant without him seeing it, but says he doubts that it ever happened because he assumes that someone would have come to his office to report the conduct.

 

Testimony of Master Corporal Nickerson

 

[24]           Master Corporal Nickerson was also called as a defence witness. He enrolled as a cook eleven to twelve years ago and is currently serving at 12 Wing Shearwater. He knows the accused from having served with him on and off. In his capacity of galley buffer of Juno Galley, Master Corporal Nickerson was in charge of supervising subordinates, including the accused and the complainant. Master Corporal Nickerson explained that in the performance of their respective duties, when they were on shifts in the galley, he would normally see both the accused and the complainant for a duration of seven hours out of an eight-hour shift. He also explains that he did not witness any impropriety on the part of Corporal Euler toward the complainant.

 

[25]           He confirmed that the complainant’s career was progressing very slowly as a result of her being delayed in her training and her Fitness for Operational Requirements of Canadian Armed Forces Employment Evaluation had expired a while ago. He testified that M.L. required constant supervision by the shift i/c and was pressured by her chain of command to do her job. When asked about the complainant’s integrity, the witness answered that her integrity was questionable, that she easily “cried wolf”, but did not provide details to explain his opinion.

 

[26]           He confirmed that the complainant reported the incident to him, but in her allegations she did not say that the accused touched or slapped her buttocks. She rather told him that the accused was asking for hugs; however, she did not expressly say that he did, in fact, hug her. He further testified that her reporting the incidents to him was the first time that he heard about any concerns on her part involving the accused’s alleged misconduct toward her.

 

[27]           In cross-examination, he explained that the only allegation conveyed to him by the complainant in relation to any touching involved pertained to the accused massaging her shoulders. The incidents involving some of the other touching were only brought to his attention when he received the summons for his appearance in court. He recognized later in his testimony that a document he prepared to report the incident to his chain of command included the mention that the complainant was alleging she felt sexually harassed, touched inappropriately and subjected to sexual comments. He conceded that the nature of these allegations were broad and could have included being slapped on the buttocks. He did see that the complainant was very distressed; he described her as being shy, which could explain why she did not report the details of the touching when she made her complaint. He also stated that, although he did not see any improprieties on the accused’s part, he recognized that it could have happened.

 

Testimony of Mr Giffin

 

[28]           Mr Giffin also testified for the defence. He has been a chef for over thirty years in Halifax and now works as civilian cook with the Department of National Defence, a position he has occupied for three years. He first met the accused when the latter was i/c at Juno Galley, days after he started working at Juno Tower in 2018. He also met the complainant as a co-worker in Juno Tower, and he worked with both her and the accused. He explains not having a personal relationship with M.L.; the complainant was not part of his social circle at work during break time. He observed both the complainant and the accused behaving normally toward one another and never saw the accused acting inappropriately toward M.L. She and the accused have different work stations, but he did see Corporal Euler communicate with the complainant for work-related purposes. He testifies being aware of one conflict between the accused and the complainant, caused by the complainant being expected to report at 1000 hours for her 1030 hours shift, however she did not report to her shift at the requested time. He testifies that the day after this lateness incident, the accused was asked to leave Juno Galley.

 

Testimony of Master Sailor Beals

 

[29]           Another witness to testify for the defence was Master Sailor Beals, who explains enrolling in the CAF in 2006. He is also a cook. After he was appointed to the rank of master sailor, he served in Juno Galley from February until May, then in September, November and December 2019 as an i/c shift and galley supervisor for a portion of that time. As such, his duty involved supervising the staff as well as ensuring that meals were served on time and ensuring the cleanliness of the galley. He explains he would typically be on the floor between three to four hours a day; the rest of the working day he was in his office doing paperwork.

 

[30]           He first met the accused as a co-worker when they were both corporals in 12 Wing Shearwater, then in Juno Galley where the witness became the accused’s superior. He testifies knowing the complainant as a subordinate in both 12 Wing Shearwater then Juno Galley in 2019 during his time there. He confirms that the complainant’s career was going slower than normal; she was given an extension for completing her QL5. He claims that her work ethic was not the greatest, as she was perceived as trying to get out of performing her tasks. As a result, he felt the need to task the accused in his capacity of i/c to keep an eye on the complainant to ensure that she was performing her tasks as expected. Further, she was required to seek permission when she needed to absent herself from the galley.

 

[31]           He also mentions not witnessing any impropriety regarding Corporal Euler’s conduct toward M.L., and that both she and the accused’s respective conduct were otherwise normal. He saw both of them communicate information in relation to the conduct of their respective tasks. In cross-examination, he reaffirmed not being in Juno Galley in June, July and August 2019, as he was teaching a course in CFB Borden.

 

Testimony of the accused

 

[32]           Corporal Euler testified in his own defence. He explained enrolling in the CAF in 1986, eventually serving as a cook. He retired from the CAF on 14 February 2020 at the rank of corporal. He confirmed meeting the complainant at work at 12 Wing Shearwater then in Juno Galley in 2018-2019.

 

[33]           He testified that, in his capacity as i/c, he had to discipline the complainant on two different occasions during their mutual time in Juno Tower. The first incident happened on 21 June 2019, a day the personnel at the galley were allowed to bring family members to work for a special event related to Family Day. The complainant brought one of her children and they baked cookies together in the bake shop. During the conduct of their activities in the bake shop, the floor flooded, most likely as a result of the action of the complainant’s child. The accused testified that he was required to counsel the complainant because of the state of the bake shop and the disruption she and her child had caused. In counselling the complainant, he put his hand on her shoulder to tell her that she was required to control the actions of her child to avoid any subsequent disruption in the workplace. As she seemed to ignore his warning, he flipped his hand and left the vicinity in order to report the incident to Master Sailor Beals. The second incident would have happened on 15 or 16 July 2019, when the complainant left the galley for a cigarette break during mealtime without first seeking permission. The accused approached the complainant on this occasion and once again put his hand on her shoulder, admonishing her for not following his directions. Private Hardiman was present and witnessed the interaction. He did not counsel Private Hardiman because she was an untrained cook. He testified that Mr Giffin had also noticed the complainant’s absence at that time, and the accused and him both discussed it.

 

[34]           The day after this second incident, he was called to the chief’s office, and the following day he was transferred to 12 Wing Shearwater. After providing this version of events to the Court, the accused was asked a series of suggestive questions by his defence counsel, to which he answered “no” to all propositions that pertained to the allegations against him, including the contention that he was never alone with the complainant. He did confirm they hugged when she first arrived in Juno Galley.

 

[35]           In cross-examination, it was put to the accused that he was untruthful regarding the 21 June 2019 incident because the reporting of the incident to Master Sailor Beals could not have happened, as the latter was away at that time teaching in CFB Borden.

 

The law

 

Presumption of innocence

 

[36]           When reviewing the evidence, the Court must be mindful that the presumption of innocence remains until such time as the prosecution has satisfied the Court beyond a reasonable doubt that the accused is guilty on the charges before it. The term “beyond a reasonable doubt” has been described by the Supreme Court of Canada (SCC) in R. v. Lifchus, [1997] 3 S.C.R. 320 at paragraph 39:

 

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

 

[37]           In other terms, if I believe that the accused is probably guilty or likely guilty, that is not sufficient. If the prosecution fails to satisfy me of the accused’s guilt beyond a reasonable doubt, I must give the accused the benefit of the doubt and acquit him.

 

[38]           On the other hand, it is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to do so. Such a standard of proof is impossibly high. Therefore, in order to find the accused guilty of the charges before the Court, the onus is on the prosecution to prove something less than an absolute certainty, but more than probable guilt (see R. v. Starr, [2000] 2 S.C.R. 144, paragraph 242).

 

The accusations

 

Section 93 of the NDA – disgraceful conduct

 

[39]           In reviewing the evidence, the Court must decide if the particulars found in the charge were proven beyond a reasonable doubt. In order to prove a charge pursuant to section 93 of the NDA, the prosecution is required to prove all the essential elements of the offence. In this regard, section 93 of the NDA states:

 

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.

 

[40]           The prosecution would have to prove that the accused deliberately adopted the conduct forming the basis of the charge, in this case that the accused deliberately touched the buttocks of the complainant without her consent. Consent is typically not an essential element to prove for an offence of disgraceful conduct. However, because the circumstances of the allegations in this case pertain to the violation of the sexual integrity of the complainant, the absence of consent of the complainant is an essential element to prove. The finding on the charge that the act as particularized in the charge sheet has been proven beyond a reasonable doubt depends on my assessment of the credibility of the witnesses.  

 

[41]           The prosecution must also prove that the accused’s actions were disgraceful within the context of section 93 of the NDA. A finding that the alleged conduct constitutes disgraceful conduct requires an assessment of the accused’s conduct in the context in which it took place. Further, in Canada v. Bannister, 2019 CMAC 2, the Court Martial Appeal Court (CMAC) confirmed that the determination as to whether the actions of the accused were disgraceful must be determined on an objective standard. In deciding whether the alleged proven conduct under section 93 of the NDA is disgraceful, the military judge must consider the perspective of a reasonable person with military experience and general service knowledge.

 

[42]           At paragraph 22 of Bannister, the CMAC clarified the required contextual analysis to assist trial judges in determining whether the conduct is disgraceful:

 

[22]         Ultimately, what is required is a contextual assessment of the incidents from the perspective of the Canadian Armed Forces [CAF] and the military community. In some incidents, the contextual assessment must also involve consideration as to the manner by which the incidents might be viewed in the non-military community. As stated earlier, s. 93 criminalizes actions that would not constitute crimes in non-military settings. The severity of the offence is reflected in the maximum penalty, which is imprisonment for a term not exceeding five years. That punishment alone suggests that the offences targeted are ones that do more than raise a level of discomfort, insult, or somewhat offend those in the military community. The term “shockingly unacceptable”, the use of which I have noted above, captures some incidents that could attract a charge under s. 93, but is only part of a contextual assessment.

 

[43]           At paragraphs 25 and 26 of the decision, the CMAC added:

 

[25]         In addition to “shockingly unacceptable”, there are many other descriptions that capture the essence of what is meant by the term disgraceful. In some cases, any reasonable person might consider an incident as being disgraceful, saying, “I know disgraceful when I see it”. However, the application of an objective standard can never be that simple.

 

[26]         Whether incidents are disgraceful are not to be determined by considering harm as a separate issue. That is to say, there are not two separate silos, one for “shockingly unacceptable” conduct and one for consequences related to “harm or risk of harm”. Whether something is shockingly unacceptable can be informed by the nature of the harm. The more severe the harm or risk of harm, the more likely something is to bring disgrace to the CAF. Conversely, the more shockingly unacceptable an incident is in light of CAF operational and military community norms, the less is required on the scale of harm assessment.

 

[44]           Additionally, in R. v. Marsaw, CMAC-395, in ruling on the jurisdiction of courts martial to try an offence contrary to section 93 in a case where the impugned conduct was sexualized, at a time where military tribunals were barred from trying sexual assaults, the CMAC commented that conduct akin to sexual assault is disgraceful conduct. See also R. v. Buenacruz, 2017 CM 4014 at paragraph 77.

 

Section 95 of the NDA – abuse of subordinates

 

[45]           With respect to the second charge, the prosecution must prove beyond a reasonable doubt the following essential elements: the identity of Corporal Euler as the author of the alleged offence; the date and place of the offence; that the accused abused a person, in this case that he repetitively hugged M.L. without her consent; that the person was subordinate to the accused by reason of his rank or position; that Corporal Euler knew M.L. was subordinate to him; and finally, that Corporal Euler intended to hug M.L.

 

[46]           On this note, similar to an offence under section 129 of the NDA (conduct to the prejudice of good order and discipline) which does not require proof of an intent on the part of the accused to cause a prejudice, I am of the view that an offence under section 95 of the NDA does not require proof of a subjective intent to abuse a subordinate. The requirement to prove a specific intent is normally stated in the statutory provision creating the infraction, which is not the case for section 95. See, for example, the specific intent of an offence contrary to section 229 of the Criminal Code. The blameworthy state of mind therefore required to prove this infraction is the intent to strike or otherwise ill-treat a person, and the knowledge by the accused that the person struck or otherwise ill-treated was subordinate to them.

 

Assessment of credibility of sexual misconduct offences

 

[47]           The charges laid against Corporal Euler alleged sexual misconduct. Sexual misconduct offences are typically committed when the accused is alone with the complainant. It is therefore quite common to have only the complainant and the accused providing relevant evidence on what unfolded during the period relevant to the allegations. Credibility is consequently the fundamental question that the Court must assess when determining its finding. In other words, in determining if the essential elements of the offences have been proven beyond a reasonable doubt, the trier of facts must assess the credibility of the witnesses who provided evidence in court.

 

[48]           Rendering a verdict is not a question of deciding whether the court believes the defence's evidence or the prosecution's evidence. In those areas where the accused’s evidence contradicts the evidence of prosecution witnesses, the test the Court must follow is provided by the SCC in W.(D.) at page 758 as follows:

 

(a)               first, if I believe the evidence of the accused, obviously I must acquit;

 

(b)               second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

 

(c)               third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

 

[49]           This test does not oblige the trial judge to follow the order provided by the SCC when assessing the credibility of the witnesses. In fact, it sometimes makes more sense to assess the credibility of the witnesses in their order of appearance in court. Further, a finding that a witness is credible does not require a judge to accept all the witness’s testimony. Accordingly, a court may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.

 

[50]           Discrepancies in testimony or with other aspects of the evidence does not necessarily mean that the witness’s testimony should be discredited. Minor discrepancies may be irrelevant; they may be caused by the passage of time and the genuine inability of the witness to remember all the details of the matter that he/she is providing testimony for.

 

Analysis

 

Exclusion of evidence of discreditable conduct or similar facts

 

[51]           This said, before the Court proceeds with an assessment of the credibility of the witnesses, it must address a matter that arose during the presentation of the prosecution’s case. The defence objected to the admission of the testimony of Private Hardiman, contending that the purpose of her evidence was to prove discreditable conduct or, alternatively, to prove a fact that is similar to those that form the basis of the charges, evidence that is generally not admissible. In particular, Private Hardiman’s testimony served to establish that the accused rubbed the complainant’s shoulders and the back of her neck without the complainant’s consent. Since the rubbing of the complainant’s shoulders and the back of her neck is not conduct described in the particulars of either charge, he contends that this evidence would serve to prove discreditable conduct or similar facts. The defence argues that such evidence presents a risk that the Court may draw wrong inferences that Corporal Euler is the type of person who would engage in the conduct particularized in both charges. Referring to the SCC decision R. v. Handy, 2002 SCC 56, he contends that this evidence presents prejudicial effects that outweigh its probative value and should therefore be excluded in accordance with rules 21 or 22 of the MRE.

 

[52]           In response to the defence’s objection, in order to attempt to meet its burden, the prosecution explained that the evidence serves to rebut the contention of the defence that the complainant fabricated her evidence. Private Hardiman’s testimony proves that the complainant was not facing disciplinary measures at the time. The prosecution did not contradict defence’s argument that the purpose of this evidence was to prove a similar fact. The Court heard the contentious evidence, informing counsel that it would rule on its admissibility as part of its finding.

 

[53]           The Court accepts that the evidence provided by Private Hardiman was to prove that the accused rubbed the complainant’s shoulders and the back of her neck in a way that the witness described as inappropriate. I find that the purpose of adducing this evidence was to prove a similar fact, since the specific act the witness described the accused engaged in is not encapsulated by either charge. The evidence does tend to demonstrate inappropriate touching of the complainant by the accused in a context similar to the context particularized in both charges.

 

[54]           In this instance, the onus was on the prosecution to prove, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect on a clearly defined issue in the case at bar. Rule 22 of the MRE further restricts the circumstances in which this evidence can be ruled admissible: similar fact evidence is not admissible where the purpose is to establish the actus reus of the offence charged, that is, to permit the prosecution to argue that because the accused had engaged in improper touching of the complainant on one occasion, he engaged in similar improper touching with her on another occasion.

 

[55]           In other words, before evaluating the probative value of the similar fact evidence the prosecution wants to adduce, the Court first has to examine whether the evidence meets the conditions of MRE 22. In fact, as established by R. v. Laflamme (1993), CMAC-342, the MRE have force of law. Therefore, I am bound by rule 22 even though this rule may have a more restrictive application than its equivalent common law rule. Rule 22 of the MRE provides, in addition to other conditions to be met in order to adduce similar facts evidence, that “[i]f it has been established that the act referred to in the charge was done by someone, but the state of mind or identity of the actor is in doubt, the prosecutor may … introduce evidence of another act or other acts of the accused similar in essential respects to the act charged”. Once all the conditions of this rule are met, the trial judge shall nevertheless exclude the evidence if he or she “decides that its probative value is slight or that it would have an undue tendency to arouse prejudice against the accused, thereby impairing the fairness of the trial.”

 

[56]           Despite the fact that the state of mind or identity of Corporal Euler as the author of the alleged conduct is clearly not in doubt, the Court conducted a balancing exercise to decide whether the probative value of the evidence is slight or that it would have an undue tendency to arouse prejudice against the accused. In its analysis, the Court considered the type of touching described by the witness, which was different from the one forming the basis of the charges. The Court also considered that the similar conduct happened only once, that there was uncertainty with the time it may have taken place, contrasting with the other allegations forming the basis of the charges, as well as the risk that the Court draw the wrong inference based on this evidence. In consideration of these criteria, I find that, if I was to assess Private Hardiman’s testimony to be credible and accept her evidence, I may draw the inference that, because the witness saw the accused rubbing the complainant’s shoulders and back of the neck, the accused most likely committed the offences of repetitively hugging the complainant and touching her buttocks without her consent. Consequently, I find that the prosecution has not met its onus to demonstrate that the evidence meets the conditions set out in rule 22 of the MRE. In fact, its position that the evidence was aimed at rebutting the defence theory only serves to confirm that the prejudicial effect of this evidence outweighs its probative value. Consequently, the Court shall exclude the testimony of Private Hardiman since the conditions of MRE 22 are not met.

 

[57]           It is unfortunate that the prosecution did not ask the Court to open a voir dire in order to obtain a ruling on this issue prior to adducing the contentious evidence. An application should have been presented by the prosecution to receive a separate ruling. Nevertheless, I have instructed myself not to consider such evidence because it would have an undue tendency to arouse prejudice against the accused.

 

Overall analysis of both charges

 

[58]           Moreover, at the end of the prosecution’s submissions, the Court asked to provide a rationale for laying two separate charges that share the same factual foundation: except for the type of touching, the particulars of both charges have the same dates, places and involve the same complainant, which is an indication that the allegations pertain to one continuous pattern of conduct. Asked whether the particulars of both charges relate to only one transaction, the prosecution answered that the two charges are different, but conceded that the touching of the buttocks of the complainant particularized in charge one, behaved in a disgraceful manner, allegedly took place while the accused was hugging the complainant as particularized in the second charge, ill-treated a person who, by reason of rank, was subordinate to him. He mentioned that a conviction on one of the two charges would be appropriate. Consequently, as the two offences are closely connected and form one transaction, the Court has approached this case providing an overall analysis of the credibility of the witnesses for both charges at once.

 

Assessment of credibility

 

[59]           In conducting my analysis, I proceeded first in assessing the evidence and credibility of all the witnesses in order to determine whether the particulars of the charges have been made out. In a case like this, where there is really only the testimony of the complainant that the Court is expected to rely upon in support of the prosecution’s case, I must scrutinize this evidence to determine whether the prosecution proved all the essential elements of the offences beyond a reasonable doubt. It is important to understand that it is during these proceedings that the prosecution’s evidence is vigorously challenged for the first time in a context where the accused put forward his own defence. Given that the event in question took place over two years ago, witnesses may have different recollections of the events and the Court has to determine what evidence it finds credible and reliable.

 

Witness for the prosecution

 

The complainant

 

[60]           In examining the complainant’s evidence, the Court finds that she testified in a very calm and clear manner. When she was uncertain or had doubts about her answer, she said so. Under both direct and cross-examination, M.L. was reasonable and not argumentative. She did not seem to try to hide anything or attempt to embellish her version of events.

 

The defence’s claim of inconsistent statements

 

[61]           During her cross-examination, M.L. was challenged by defence on the previous three statements she made to both Master Corporal Nickerson and to the military police. The complainant confirmed almost every single detail of her testimony and, in fact demonstrated that her previous statements were consistent with her testimony, particularly regarding the hugging incidents. The Court notes that the allegations she conveyed to Master Corporal Nickerson were general in nature; the complainant did not provide Master Corporal Nickerson with the details as to the type of touching. The Court therefore finds that there were no contradictions between her previous statements as generally conveyed to her superior and her testimony in court which was composed of a more detailed account of the incidents.

 

[62]           There was, however, a discrepancy that pertained to the sequence of events in relation to her allegation of being slapped on the buttocks with a clipboard, which was referred to by the complainant as the first incident of touching in one previous statement. During her testimony, she recognized being mistaken during her interview with the authorities, but explained that she was stressed by the process. The Court finds that the passage of time could also explain this contradiction.

 

[63]           When it was suggested to the complainant by defence counsel that her allegations included the accused touching her buttocks often, or that there were many invitations to go to a hotel, she corrected these suggestions. She also accepted that she reciprocated the first hug the accused gave her when she first arrived at Juno Galley, as she considered it a friendly gesture. She also said that she tried to avoid the accused because she was uncomfortable in his presence. When told by the defence that its witnesses will say that the accused never engaged in sexual impropriety with her, she answered that they were not present when the incidents happened.

 

[64]           Despite what the defence alluded to, corroborating evidence is not required to accept the testimony of a complainant as credible. I find her version of events to be consistent throughout; I do not accept the defence’s assertion that the complainant provided inconsistent statements. The discrepancies suggested by the defence were either mischaracterized as such, or were minor in nature. These minor discrepancies were either corrected, or a reasonable and credible explanation was provided by the complainant after she initially gave her answer. In particular, she did not change her version regarding the part of her body the accused tried to touch when she said she was feeling unwell; she consistently stated that the accused was reaching to grab either her hip or her buttocks. She simply did not know which part of the body the accused was attempting to touch. She did initially say the hug happened every day or almost every day, then said every morning, but there is no inconsistency in this statement; she always affirmed that the hugging was taking place on a daily basis, normally in the morning. She also testified that she was nervous and stressed out when she met with Master Corporal Nickerson to report her allegations. She explained not providing some details of the touching because she was uncomfortable recounting her version of events. Furthermore, Master Corporal Nickerson confirmed that he did observe that the complainant seemed distressed when she reported her allegations to him.

 

[65]           When misdirected on facts, such as when the defence suggested that her statements to the military police included several incidents involving Corporal Euler inappropriately soliciting her, she clarified that there was only one occurrence of solicitation, although it is unclear whether her statement to the military police in this regard was referring to the hotel invitation, or to sexual comments generally. The Court finds that the discrepancies in the complainant’s testimony are minor and were either corrected or explained. She did not argue, explain or try to justify, but seemed surprised in reacting to certain suggestions put to her by the defence. She answered calmly, in particular to the defence’s suggestion that the accused disciplined her. I find, therefore, her testimony to be credible.

 

[66]           The defence also contends that the complainant did not seem distraught or did not act differently around the accused at work. She did not appear visibly uncomfortable. Defence witnesses testified that they did not notice anything in this regard. In the evidence that I have accepted, I saw no contradictions between the complainant’s testimony and those of the defence witnesses on this point. She said she was uncomfortable in the accused’s presence and tried to avoid him. She did not say that she was experiencing a visible physical reaction when in his presence. Additionally, the attitude and reaction that is expected of a victim of a sexual misconduct, such as being visibly uncomfortable, scared or repulsed, or displaying some form of apparent physical reaction when in the presence of the perpetrator, or running to the authorities immediately to report the event, is a myth. Victims of sexual misconduct may act or react in an array of ways. The evidence regarding a complainant’s post-offence conduct should be adduced to impeach the credibility of the complainant only in limited cases, with the application of a stringent test involving the question as to whether its probative value outweighs the prejudicial effect. Having found no discrepancies in M.L.’s evidence and the whole of the evidence in this case, the Court has given no weight to this defence’s argument.

 

The defence’s claim of disciplinary or administrative issues

 

[67]           In order to impeach the credibility of the complainant, the defence advanced the theory that the complainant was experiencing disciplinary issues and had, therefore, a motive to fabricate her allegations. He submits that the complainant is acting in retaliation against the accused because he disciplined her, or to shift the attention of the chain of command away from her, onto the accused. The defence went as far as contending, to use its own words, that the complainant had little integrity, and that she “plays the system to get what she wants”, implying that her testimony is unworthy of belief. I find the defence’s theory unsubstantiated by the evidence admitted at trial. In other words, the evidence fell short of proving that the complainant experienced disciplinary issues and therefore had a motive to put forth a false allegation of sexual misconduct against the accused, for the reasons that follow.

 

[68]           The first defence witness, Petty Officer, 2nd Class Dumas, testified in a straightforward manner and had little at stake in these proceedings. He referred to the complainant as a “problem child”. Recognizing the expression is a poor choice of words, he explained the complainant was attributed this regrettable label by her chain of command because her maternity and parental leave stalled her career progression as a result of her qualifications taking too long to attain. She was, in fact, delayed thirty months. At the time, the chain of command was considering having the complainant start her training from the beginning. Ultimately, the chain of command decided against this course of action. Petty Officer, 2nd Class Dumas testified that the complainant otherwise was performing normally, and he was not aware of the complainant being the subject of any disciplinary or administrative issues. Master Sailor Beals testified that there was perhaps a concern that the complainant left work without seeking permission; therefore, it was required to keep an eye on her. His evidence and Master Corporal Nickerson’s indicated that their main concern, however, pertained to the career progression of M.L. being slowed down as a result of her taking maternity and parental leave. In particular, Master Corporal Nickerson explained that the complainant’s career was very slow going and that she required constant supervision. She was behind in her training package and was under pressure to complete it. When asked about the complainant’s integrity, the witness answered that her integrity was questionable; however, he did not provide any facts supporting his opinion.

 

[69]           Because of the subjectivity of this witness’s particular statement in regard to the complainant’s integrity and performance, and considering the evidence provided by defence witnesses who were also members of the complainant’s chain of command during the material time of the allegations, it is apparent that the leadership was experiencing frustration as a result of the delays for the complainant to complete her training. These delays would, presumably, have had other consequences on postings and work assignments within the unit. The Court finds that these statements related to the complainant’s work ethics originate generally from her training being delayed as a result of her taking maternity and parental leave. There was no convincing evidence that would support that the complainant was experiencing disciplinary issues at the time, or was being closely monitored because of an alleged lack of work ethics. The evidence does not support a theory that the complainant had a motive to fabricate her allegations and be untruthful during her testimony because the evidence does not support that she was facing disciplinary issues. I conclude that the incendiary comment made by the defence that the complainant “plays the system to get what she wants” was solely based on evidence introduced at the trial that pertained to the complainant exercising her rights to benefit from maternity and parental leave which, ultimately, caused delays in her career progression.

 

[70]           It is not uncommon that frustrations may arise within the chain of command, and within the unit, when a CAF member, part of the unit, exercises his or her right to take maternity and parental leave, which translates into a long period of absence from the workplace. Long period of absence of a member might cause disruption at the unit level, which often needs to expend time, funds and efforts to reallocate positions and resources. There is a potential for the unit to be short one person for an extended period of time. Nevertheless, this leave is a benefit provided to Canadian citizens. In accordance with articles 16.26 and 16.27 of the Queen’s Regulations and Orders for the Canadian Forces and in the applicable Compensation and Benefits Instructions, these benefits have been specifically recognized and tailored for CAF members. To this effect, Defence Administrative Order and Directive 5001-2, Maternity and Parental Benefits provides that:

 

2.1 To ensure recruitment, employment and retention of suitably qualified women and men, the CAF, as an employer of choice, will provide maternity and parental benefits that assist both female and male members to balance the demands of military service with family responsibilities associated with the birth or adoption of their children.

 

2.2 The CAF will provide eligible members with time away from their military duties and compensation to care for their newborn or adopted children free from undue financial or duty-related concerns.

 

2.3 These benefits support policies of:

 

a. gender equity by encouraging both parents to share family responsibilities; and

 

b. employment equity by encouraging the recruitment and retention of women.

 

[71]           There are foreseeable, natural and systemic consequences on the career progression of a CAF member choosing to take this leave for an extended period, because they are unable to serve and compete, train or deploy during this period. Nevertheless, those who choose to take the full period of leave granted by the applicable provisions should not be the subject of reprisal measures, be ostracized or labelled for taking the leave. That said, the Court does not believe that the complainant was treated inappropriately or unfairly by her chain of command as a result of her taking maternity and parental leave. The choice of words of “problem child” was unfortunate as recognized by Petty Officer, 2nd Class Dumas; however, the complainant’s chain of command was on the contrary supportive of her career progression in encouraging her to complete her qualifications so she could get promoted and receive the pay increase accordingly. The Court rather addresses the defence theory to the effect that the complainant had little integrity and “plays the system to get what she wants”. This statement was irrelevant, fallacious and unsubstantiated.

 

[72]           As for other disciplinary issues, the evidence is also lacking. If the complainant, an able seaman who had not yet completed her own training, was indeed unreliable in her duties and required continued supervision as contended by the defence, it would be illogical to assign her the constant supervision of an untrained cook on OJT. The complainant further provided evidence that she understood her obligation to enquire when she needed to absent herself, as demonstrated by her testimony in describing the event when she felt unwell and went to the accused as the i/c to report her situation and presumably to seek permission to leave early. On cross-examination, when the proposition was put by the defence that the accused reprimanded her for leaving without seeking permission, she denied it without providing excuses or justification, but it was apparent that she was surprised by this assertion. Regardless, even if I accept that the accused had to counsel the complainant on two occasions, because she was being held accountable for her child’s action, or because she went on break without asking, these incidents are far from supporting the contention that the complainant was experiencing disciplinary issues during the material time. The causal relation that would exist between these two counselling sessions and the alleged false allegation or motive to fabricate is weak, to say the least. I do not accept this defence argument.

 

Witnesses for the defence

 

[73]           Except for the Court’s assessment of Master Corporal Nickerson’s portion of his testimony regarding the complainant’s work ethics, I do accept both counsel’s submissions that the defence witnesses, Petty Officer, 2nd Class Dumas, Master Sailor Beals, Mr Giffin and Master Corporal Nickerson were credible witnesses. They generally testified in an unbiased manner, they were not argumentative. They recounted details pertaining to the work conditions in the galley, the slow career progression of the complainant and the command structure for both the accused and the complainant as serving members of Juno Galley. It was apparent that these witnesses had nothing to gain nor lose. Their testimonies were of limited assistance however, as they did not witness the conduct forming the basis of the charges. They did recognize that the alleged conduct could have happened without their knowledge and that such conduct would be inappropriate. The purpose of their testimony was to impeach the complainant’s credibility, in other words, to support the defence’s theory that the complainant had fabricated her allegations and testimony in order to shift the chain of command’s attention away from herself. Nevertheless, certain aspects of their testimony assisted the Court in understanding the dynamics and work conditions in the galley.

 

Accused’s testimony

 

[74]           The accused generally denies the allegations. To use the words of the accused’s defence counsel, Corporal Euler is a man of a few words. I must ask myself if the accused’s general denial of the allegations raises a reasonable doubt.

 

[75]           It is challenging to assess the credibility of an accused when they only provide a blanket denial of the allegations. Regardless, the assessment of the accused’s credibility should be done considering the whole of the evidence that was accepted at the trial, including the complainant’s testimony. The Court can also consider, in its assessment, the way the accused responded or reacted while on the stand. In this regard, I find that the accused was assertive in his responses. He was calm, not argumentative and corrected himself when he realized he was mistaken on a date. He admitted that he talked to Mr Giffin about the allegations after being removed from his position at Juno Galley. When offered the opportunity to comment on the theory that the complainant had fabricated her evidence, or that her work ethic was questionable, the accused did not use this as an opportunity to discredit the complainant.

 

[76]           I do accept, as credible, the evidence that there was at least one occasion where the accused was required to counsel the complainant because she had left work without seeking permission first. This evidence was provided by the accused and corroborated by Master Sailor Beals and somewhat by the testimony of Mr Giffin. As for when this happened, Master Sailor Beals was certain, and had a sufficient and valid reason to remember, that he was no longer at Juno Galley in June and July 2019. Therefore, I find that the counselling of the complainant regarding her leaving work without permission could not have happened in, or after, June 2019. In considering the evidence of other witnesses, this counselling incident most likely happened in May 2019. Therefore, it could not have taken place in the presence of Private Hardiman. Regardless, this incident has little weight to support the defence theory that M.L. was facing disciplinary measures at the time for the reasons I have already explained.

 

[77]           Having accepted the accused’s evidence that he had to counsel the complainant on at least one occasion, I must decide if I believe his version that he grabbed the complainant’s shoulder to get her attention in order to discipline her. This version of events is difficult to believe. Why grab M.L.’s shoulder to get her attention when also admitting doing so was unnecessary? I find that the accused is attempting to find excuses for touching the complainant’s shoulder under the guise of counselling. Considering the evidence as a whole, I do not believe this portion of his testimony.

 

[78]           Further, although the accused did answer assertively during his testimony, I do not accept his evidence that he was never alone with the complainant. His testimony on this point was internally inconsistent with his assertion that the welcoming hug happened when he and the complainant were both alone. He also testified that one counselling took place when he and the complainant were in fact alone. The Court is therefore not accepting that the accused was never alone with the complainant. These internal discrepancies, with the contradictions of his testimony with the whole of the evidence the Court has accepted, renders the accused’s general denial difficult to believe.

 

[79]           It is important to remember that the burden of proof remains on the prosecution. The accused does not bear the burden of proving that the incident did not happen.

 

[80]           I have accepted that the accused and the complainant hugged each other the first day she reported to Juno Galley at the end of April 2019. The complainant and the accused both testified that there was consent on her part, therefore this particular act is non-contentious.

 

[81]           The other incidents where the accused allegedly hugged the complainant every day, with two incidents where the accused would have touched her buttocks, are in dispute. The accused denied that he ever hugged M.L. following her first day at Juno Galley. I find the accused’s general denial difficult to accept, in particular when his evidence on key points was provided in answer to a series of suggestive questions by his counsel. Regarding his version that he had to discipline the complainant, the exercise of the accused’s duty as the i/c to remind the complainant of his professional expectations of her as a cook, such as keeping the galley clean, or the necessity for her to seek permission before leaving for a break, does not imply that M.L. experienced disciplinary issues with her chain of command. I, therefore, do not accept the accused’s evidence in this regard. As for his testimony regarding the allegations, he denied ever having touched the complainant, except as mentioned earlier. In light of the evidence I have accepted, I do not believe the accused’s general denegation of the allegations, and I do not accept his explanation as to the touching of the complainant’s shoulder. In further asking myself whether the accused’s testimony leaves me with a reasonable doubt, for the reasons expressed earlier, it does not.

 

Assessing the evidence as a whole

 

[82]           Now I must ask myself, looking at the evidence as a whole, whether I am left with a reasonable doubt as to the accused’s guilt. As alluded to earlier, offences of a sexual nature generally happen when no one else is around but the accused and the victim. They are infractions of opportunity, seized by the perpetrator who has a chance to engage into sexual misconduct when alone with the victim. This is why most of the evidence for these cases are mainly tried upon the credibility of witnesses. A statement that a witness did not see anything does not mean that nothing happened; it simply means that the person did not witness the incident.

 

[83]           In this case, I found the testimony of the complainant to be credible. That said, in reviewing her evidence, the Court is left with a significant number of unanswered questions. Indeed, the allegations are to the effect that the unwanted hugging allegedly took place on a daily basis in the workplace for several months. There was no evidence adduced regarding the circumstances the daily hug take place. Did they take place when both the accused and the complainant arrived before the start of their shift in the morning, or during, or after their shift? What time were the complainant and the accused scheduled to report? What time did they typically report and where in the building? Was the schedule the same for all galley staff?

 

[84]           It is not contested that Juno Galley is a very busy workplace with at least ten to twelve people working during the same shift. All staff members have to be vigilant of their surroundings at all time; everybody has to be on the lookout for hazardous circumstances in order to prevent accidents and injuries. In addition, the complainant was tasked with the constant supervision of a subordinate who was, as the Court understands it, shadowing the complainant at Juno Galley. Other than evidence that Juno Galley was an open space generally unobstructed view of the room, the Court was not provided with the details regarding the configuration of Juno Galley, such as the setup of the galley, its size, the size and location of the bake shop and of the back room, nor was there any evidence regarding assigned shifts, expected time and location of arrival for staff. There was no evidence provided of galleys schedules pertaining to hours when it was occupied and when it was vacant. Except for the brief mention in the evidence of Mr Giffin that the expected time of arrival for the complainant for a specific reporting day was between 1000 and 1030 hours, no evidence was adduced by the prosecution regarding the time that personnel normally arrives, the complainant’s and the accused’s typical arrival at work, the shift the accused and the complainant were assigned, its duration and whether the eight-hour shift alluded to by Master Corporal Nickerson was for all the staff or just the complainant and the accused. There was also no evidence regarding the schedule of the galley with timing for breaks for the staff and the names of the other staff that the accused and the complainant normally would work with. All of these facts were critical to the evidence of the prosecution, but were not adduced at the trial.

 

[85]           Although these details may not usually be important for cases of sexual misconduct, since these offences typically happen when no one else is around, they were essential to the prosecution’s case in this instance. In effect, the Court is left to speculate as to whether the accused ever had a daily opportunity, over an extended period time, to be alone with the complainant and hug her in a high traffic, open space, closely monitored workplace that is typically crowded, busy and hazardous at a time where a subordinate was shadowing the complainant. The complainant testified that she was trying to avoid the accused, but no evidence was adduced that she effectively changed her schedule or habits as a result. The timing of the incidents is also quite blurry, particularly with the clipboard incident, where no evidence on context was provided, other than it happened on the line, a concept not explained at the trial. Without this evidence, I am left with a reasonable doubt as to the commission of any of the offences as charged.

 

[86]           While I do believe that the accused probably engaged in some sexual improprieties with the complainant, the prosecution failed to prove beyond a reasonable doubt that the accused committed the offences because of the presence of critical gaps in its evidence.

 

Conclusion

 

[87]           Relying on the evidence admitted in Court, I do find the complainant’s testimony to be generally credible. The Court did not accept that she fabricated her evidence. However, although the Court believes that the accused probably, at a given time, conducted himself inappropriately in engaging in some form of sexual improprieties toward the complainant, the evidence I have accepted leaves me with a reasonable doubt as to the accused’s guilt. The gaps in the prosecution’s evidence as to the circumstances in which the daily hugs would have occurred, in such a busy workplace, were critical and leaves the Court with a reasonable doubt as to Corporal Euler’s guilt on both charges.

 

FOR THESE REASONS, THE COURT:

 

[88]           FINDS Corporal Euler not guilty of charges 1 and 2.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major M.L.P.P. Germain and Major M. Reede

 

Major A. Gélinas-Proulx, Defence Counsel Services, Counsel for Corporal P.J.M. Euler