R. v. Clark (L.M.), (2012) 438 N.R. 366 (CMAC)

• Judge: Simpson, Watt and Mosley, JJ.A.
• Case Date: February 24, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 438 N.R. 366 (CMAC);2012 CMAC 3

R. v. Clark (L.M.) (2012), 438 N.R. 366 (CMAC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. OC.029

Captain Lisa Marie Clark (appellant) v. Her Majesty the Queen (respondent)

(CMAC-545; 2012 CMAC 3; 2012 CACM 3)

Indexed As: R. v. Clark (L.M.)

Court Martial Appeal Court

Simpson, Watt and Mosley, JJ.A.

July 30, 2012.

Summary:

Captain Clark was tried and convicted by Standing Court Martial of one count of disobeying the lawful command of a superior officer (National Defence Act, s. 83) and two counts of conduct prejudicial to good order and discipline (s. 129). She was acquitted on two further counts under s. 129. She was sentenced to a reprimand and a $1,000 fine. Clark appealed her convictions.

The Court Martial Appeal Court allowed the appeal and ordered a new trial.

Criminal Law - Topic 57

General principles - Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - Clark was convicted by Standing Court Martial of one count of disobeying the lawful command of a superior officer (National Defence Act, s. 83) and two counts of conduct prejudicial to good order and discipline (s. 129) - She appealed, alleging, inter alia, an error in credibility assessment - The Court Martial Appeal Court outlined the basic principles that informed its decision on this ground of appeal - See paragraphs 39 to 45.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Captain Clark was convicted by Standing Court Martial of one count of disobeying the lawful command of a superior officer (National Defence Act, s. 83) and two counts of conduct prejudicial to good order and discipline (s. 129) - The Court Martial Appeal Court ordered a new trial - The crucial evidence upon which Clark's convictions were founded was the testimony of Warrant Officer Galway and Master Warrant Officer Bélanger - Of those two witnesses, Galway was the more crucial - Without Galway, there was no case - The record was rife with concerns about Galway's credibility and the reliability of his evidence - Both were crucial to the judge's conclusions of guilt - The manner in which the judge approached both issues was seriously flawed - The court also found that the reasons came uncomfortably close to shifting the onus of proof and using Clark's failure to testify as an item of evidence supporting the prosecution's case - However, the court rejected the grounds that the trial judge's scrutiny of Galway's evidence as reflected in his reasons for judgment was inadequate and that his verdict was unreasonable - See paragraphs 29 to 95.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 and Criminal Law - Topic 4351 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Verdict unreasonable or unsupported by evidence - Section 686(1)(a)(i) of the Criminal Code permitted an appellate court to set aside a verdict on the ground that the verdict was unreasonable or that it could not be supported by the evidence adduced at trial - The Court Martial Appeal Court reviewed the principles that emerged from the jurisprudence on this section - See paragraphs 85 to 90.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4300 and Criminal Law - Topic 4351 ].

Cases Noticed:

R. v. Thain (C.) (2009), 247 O.A.C. 55; 243 C.C.C.(3d) 230; 2009 ONCA 223, refd to. [para. 40].

Aguilera et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 333; 2008 FC 507, refd to. [para. 41].

R.K.L. v Canada (Minister of Citizenship and Immigration) - see Lubana v. Canada (Minister of Citizenship and Immigration).

Lubana v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43; 2003 FCT 116, refd to. [para. 41].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 43].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 45].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 45].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 45].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 48].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 50].

R. v. M.G. (1994), 73 O.A.C. 356; 93 C.C.C.(3d) 347 (C.A.), refd to. [para. 51].

Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 51].

R. v. G.G. (1997), 99 O.A.C. 44; 115 C.C.C.(3d) 1 (C.A.), refd to. [para. 51].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 61].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385, refd to. [para. 62].

R. v. Wang (J.) et al. (2001), 144 O.A.C. 115; 153 C.C.C.(3d) 321 (C.A.), refd to. [para. 62].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 86].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 86].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 86].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 89].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 89].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 90].

Counsel:

David J. Bright, Q.C., for the appellant;

Lieutenant-Colonel J.A.M. Léveillée, for the respondent.

Solicitors of Record:

Boyne Clarke LLP, Dartmouth, Nova Scotia, for the appellant;

Canadian Military Prosecution Service, Ottawa, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on February 24, 2012, by Simpson, Watt and Mosley, JJ.A., of the Court Martial Appeal Court. The court delivered judgment at Ottawa, Ontario, on July 30, 2012, and Watt, J.A., delivered the following reasons for judgment for the court on September 4, 2012.