R. v. LaFlamme, (2014) 464 N.R. 338 (CMAC)

• Judge: Cournoyer, Mainville and Gagné, JJ.A.
• Case Date: June 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 464 N.R. 338 (CMAC);2014 CMAC 7

R. v. LaFlamme (2014), 464 N.R. 338 (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: [2014] N.R. TBEd. JL.001

Caporal-Chef LaFlamme (appelant) v. Sa Majesté La Reine (intimée)

(CMAC-565; 2014 CMAC 7; 2014 CACM 7)

Indexed As: R. v. LaFlamme

Court Martial Appeal Court

Cournoyer, Mainville and Gagné, JJ.A.

June 13, 2014.

Summary:

A member of the armed forces appealed the decision of a Standing Court Martial convicting him of two counts of obstructing military police officers (Criminal Code, s. 129(a)). The member argued that the military judge erred in failing to provide adequate reasons for rejecting the defence of excessive force by the military police and erred in rejecting testimony based on the rule in Browne v. Dunn notwithstanding that he had already determined that the rule did not apply.

The Court Martial Appeal Court allowed the appeal and ordered a new trial. The military judge decided not to apply the rule in Browne v. Dunn, but then applied it in his judgment to assess the credibility of the witnesses. By doing so, it was not possible to explain the verdict or determine whether the principle of reasonable doubt was correctly applied.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial (incl. duty of inquiry re relevant information) - [See Evidence - Topic 4716 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Evidence - Topic 4716 ].

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - [See Evidence - Topic 4716 ].

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - LaFlamme was convicted by a military judge of obstructing two military police officers conducting a "RIDE" checkstop for impaired drivers - The officers testified to being the only officers there - LaFlamme testified that a third officer was present and was physically and verbally abusive to him - An independent witness partially corroborated the presence of the third officer - At trial, the issue was credibility - The military judge disbelieved LaFlamme and believed the two officers - LaFlamme's defence was excessive force - If the military judge believed LaFlamme and the witness, that would adversely affect the credibility of the two officers' testimony, as the presence of the third officer was denied by them - At trial, the Crown sought to call rebuttal evidence because of the testimony that a third officer was present - The military judge found it unnecessary to recall the police witnesses because the evidence could be assessed in light of the rule set out in Browne v. Dunn - LaFlamme argued that the Crown had been promptly advised of the information respecting the presence of the third officer and that a witness was prepared to confirm that presence - The Crown did not investigate the issue, even though it was months before trial - The military judge found that LaFlamme breached the rule in Browne v. Dunn, but that the impact was neutral and there would be no negative impact in assessing the defence evidence - However, the military judge then contradicted his own ruling by using the evidence of the witness not filing a complaint or official statement in adversely assessing LaFlamme's credibility - The Court Martial Appeal Court ordered a new trial - The military judge contradicted his own ruling, which was fundamentally unfair - Further, the Crown breached the fundamental duty of a prosecutor to inquire into information questioning the honesty or reliability of its witnesses - Also, there was no breach of the rule in Browne v. Dunn - The verdict would not necessarily have been the same had the military judge applied appropriate legal principles in assessing credibility.

Cases Noticed:

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 3, footnote 4].

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), leave to appeal refused (2007), 370 N.R. 399 (S.C.C.), refd to. [para. 16, footnote 5].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198, refd to. [para. 16, footnote 5].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 16, footnote 6].

R. v. Maharaj (Y.) (2004), 187 O.A.C. 101; 186 C.C.C.(3d) 247 (C.A.), leave to appeal denied [2005] 1 S.C.R. xiv; 334 N.R. 198, refd to. [para. 16, footnote 6].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 16, footnote 7].

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. 17, footnote 8].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 17, footnote 9].

R. v. Wadforth (D.) (2009), 254 O.A.C. 295; 247 C.C.C.(3d) 466 (C.A.), refd to. [para. 17, footnote 9].

R. v. Vuradin (F.), [2013] 2 S.C.R. 639; 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 18, footnote 10].

R. v. Clark (L.M.) (2012), 438 N.R. 366; 2012 CMAC 3, refd to. [para. 23, footnote 13].

R. v. H.C. (2009), 244 O.A.C. 288; 241 C.C.C.(3d) 45 (C.A.), refd to. [para. 24, footnote 14].

R. v. Salomon, 2011 QCCA 771, refd to. [para. 24, footnote 11].

S.D. v. Criminal Injuries Compensation Board (Ont.) (2010), 262 O.A.C. 216; 2010 ONSC 2562 (Div. Ct.), refd to. [para. 25, footnote 15].

R. v. Dexter (B.) (2013), 313 O.A.C. 226; 2013 ONCA 744, refd to. [para. 26, footnote 16].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 42, footnote 19].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 46, footnote 20].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 46, footnote 20].

R. v. P.G.T., [2013] 1 S.C.R. 465; 444 N.R. 2; 337 Nfld. & P.E.I.R. 356; 1047 A.P.R. 356; 2013 SCC 10, reving (2012), 323 Nfld. & P.E.I.R. 62; 1004 A.P.R. 62; 299 C.C.C.(3d) 268 (N.L.C.A.), refd to. [para. 51, footnote 22].

R. v. Taylor - see R. v. P.G.T.

R. v. Cleghorn (L.), [1995] 3 S.C.R. 175; 186 N.R. 49; 85 O.A.C. 129, refd to. [para. 51, footnote 23].

R. v. Wright (R.) (2009), 254 O.A.C. 55; 247 C.C.C.(3d) 1 (C.A.), refd to. [para. 51, footnote 24].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 60, footnote 27].

R. v. F.E.E. (2011), 286 O.A.C. 109; 282 C.C.C.(3d) 552 (C.A.), refd to. [para. 60, footnote 28].

R. v. B.D. (2011), 273 O.A.C. 241; 266 C.C.C.(3d) 197 (C.A.), refd to. [para. 60, footnote 28].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 60, footnote 28].

R. v. J.W. (2014), 316 O.A.C. 395; 2014 ONCA 322, refd to. [para. 60, footnote 29].

R. v. Rodriguez (S.P.S.) (2014), 575 A.R. 395; 612 W.A.C. 395; 2014 ABCA 190, refd to. [para. 60, footnote 29].

Authors and Works Noticed:

Gershman, Bennett L., Witness Coaching by Prosecutors (2002), Cardozo Law Rev. 829, generally [para. 47, footnote 21].

Kaufman Report - see Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin.

MacKenzie, G., Lawyers and Ethics: Professional Responsibility and Discipline (5th Ed. 2009), pp. 4-26.2(1) to 4-31 [para. 47, footnote 21].

Mewett, Alan W., and Sankoff, Peter J., Witnesses (1991) (2012 looseleaf update), vol. 1, pp. 6-2 to 6-9 [para. 47, footnote 21].

Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), Recommendation No. 107 [para. 47, footnote 21].

Counsel:

Michel Drapeau, for the appellant, Master Corporal LaFlamme;

Major Éric Carrier, for the respondent, Her Majesty the Queen.

Solicitors of Record:

Michel Drapeau, Ottawa, Ontario, for the appellant, Master Corporal LaFlamme;

Commander J.B.M. Pelletier, Deputy Director of Military Prosecutions, Ottawa, Ontario, for the respondent, Her Majesty the Queen.

This appeal was heard on March 14, 2014, at Ottawa, Ontario, before Cournoyer, Mainville and Gagné, JJ.A., of the Court Martial Appeal Court.

On June 13, 2014, Cournoyer, J.A., delivered the following judgment for the Court.