Sheep Dog AT said:
I'd like your professional analysis.
Okay, I'll give it a shot.
First the easy one which deals with why the CMAC substituted an acquittal on Charge 6.
Charge 6 in effect stated that Watts had a duty for ensuring that before his people trained on a live C19 that they first successfully complete training on inert or practice C19s and that he neglected or failed to do so.
The courts decision is based on factual evidence from the transcript that in fact no such inert or practice C19s were available at the base and therefore it would have been impossible to perform such training. In fact the trial judge had, in his instructions to the panel, said that the panel could take that fact into account.
The CMAC stated that if in fact it is impossible to do the duty (because of the absence of inert and practice C19s) then there can't be a military duty in law to do that and that therefore can't be an offence for failing to do that military duty which is impossible to perform. An acquittal should have been entered at trial.
As to charges four and five (unlawfully causing bodily harm and negligent performance of duty by failing to halt the exercise until everyone was under cover) the CMAC ordered a new trial to take place.
At the core of the CMAC's findings as to charges 4 and 5 are the instructions which were given by the Judge Advocate to the panel. The CMAC considered that these instructions contained errors of such a nature that it was impossible to determine if the panel was mislead in how it should analyse the case.
With respect to these two charges it should be noted that unlawfully causing bodily harm in charge 4 requires an underlying unlawful act. The prosecution stated that this was the negligent performance of duty as set out in charge 5 so that both charges share the same factual information and legal analysis. The JA in his charge added words to the effect that the panel could consider evidence of a failure to properly train his soldiers in establishing the "duty". This however was not set out in the particulars of charge 5. I agree that the JA should not have included those words in the instructions.
At para 27 the CMAC states that the JA decided not to instruct the panel on certain evidence. That evidence was that Watts had advised Maj Lunney that he was not experienced on the C19; that Lunney allowed the exercise to continue under WO Ravensdale; and that Lunney was aware that Watts could not be the officer in charge. Note that undoubtedly the panel had heard that evidence during the trial and since I do not have the transcript of the actual instructions by the JA on this issue it is difficult to be critical either way. I do agree with the CMAC that this evidence is key to determining if in fact there was a military duty on Watts and to what extent that duty went. The panel should have been given clear instructions on how to deal with that evidence.
The final element to the decision relates to Watt's argument respecting the "reasonable person" standard. In this respect you should note that the CMAC didn't answer the argument in that they found it was not necessary to do so because of the two previous points but it is an interesting argument nonetheless. -- Negligent performance of a military duty has its foundation in basic criminal negligences standards - a person does something that causes harm and is does it in a manner that is a marked departure from how a reasonable person would do it. At the heart is the matter are the elements set out by the Supreme Court of Canada as set out in para 130 which all revolve around choosing to do the thing that causes harm. Watt's argument quite simply is that he did not "choose" to be the OIC practice but in fact was ordered to do so after advising his superiors that he didn't have the experience and in such circumstances his rank, training and experience should be taken into account (and by this he's undoubtedly referring to his lack of training and experience on the C19). That's an interesting question but unfortunately the CMAC avoided answering it. Please note that it is not unusual for appeal courts to provide reasons on only those matters that directly lead to their ruling. In this case the first two sets of errors on charges 4 and 5 were sufficient to order a new trial so it was not necessary to analyse and rule on this final point. It's an interesting argument and it would have been nice if they had though.
In summary, the CMAC's rulings are legally reasonable. I expect there will be many who are unhappy with them but quite simply if there were no inert or practice C19 in theatre to train on then charge 6 should never have been laid; if they were there then evidence of that fact should have been presented at trial.
One additional comment - I have known the judge advocate who ran this trial for several decades. He was a civilian crown prosecutor before becoming JA and has a ton of experience and skill in both military law and regular criminal law. He's one of our very best judges. The fact of the matter is that every once in a while a judge sees things differently then the CMAC afterwards. Trials are very dynamic and when a judge drafts his instructions to the panel he does not have the benefit of having a transcript of the evidence (only his notes) and generally he has very little time. The CMAC on the other hand has both and therefore can parse the case with true 20/20 hindsight.
At this point folks we're all back to "innocent until proven guilty" and will need to see what the re-trial on charges 4 and 5 will bring.
:cheers:
