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HALIFAX - Military prosecutors argued in an appeal court that a judge erred in a couple of ways when he acquitted the commander of an army cadet unit in a case where he made sexually inappropriate comments to a teenage girl under his command.
The Court Martial Appeal Court heard the arguments on Wednesday in Halifax.
Former army reserve Capt. Todd Bannister was found not guilty of two counts of conduct to the prejudice of good order and discipline and two counts of disgraceful behaviour at the court martial in February.
Bannister was the commanding officer of the 148 Charlottetown Royal Canadian Army Cadet Corps at the time of the alleged offences but has since been released from the military.
In Wednesday’s court session, prosecutors Lt.-Col. Anthony Farris and Maj. Dominic Martin handled the appeal submissions for the Crown. Lt.-Cmdr. Mark Letourneaux represented the defence.
Chief Justice Richard Bell, Justice Elizabeth Bennett and Justice Ted Scanlan comprised the panel hearing the appeal.
Farris outlined the facts of the case that were not in dispute. One one occasion, Bannister had suggested to Breanna MacKinnon when she was an 18-year-old cadet that they should have sex on his desk. The second incident happened when she was a full member of the Canadian Armed Forces and tasked with organizing a cadet course in Montreal. She was flustered at trying to get cadets to their correct trains and Bannister told her, in an apparent attempt to calm her down, that they should have sex.
In the original decision, Judge Lt. Col. Louis-Vincent d’Auteuil ruled that the prosecution had failed to prove beyond a reasonable doubt that Bannister caused harm and failed to prove that he had known that such comments were a violation of military cadet administration and training orders.
“The military judge made the following errors,” Farris told the panel. “Number One: He concluded that there was no evidence that the conduct of the accused tended to adversely affect good order and discipline. Number Two: He refused to apply his knowledge and experience in his determination that a proven conduct is prejudicial to good order and discipline.”
Farris said that while there was no physical harm to MacKinnon, there was a risk of harm because she first was a cadet and then was a subordinate rank to Bannister. She testified that she lost trust and felt a sense of betrayal.
Much of the arguments of the day's session focused on the wording of the “risk of harm” to MacKinnon and the armed forces and the burden of proof the prosecution must have related to how the conduct leads to the prejudice of good order and discipline.
Letourneaux argued that the prosecution did not prove prejudice beyond a reasonable doubt and suggested that the Crown should have called an expert to testify as to the effects of the conduct on the armed forces.
Farris and Martin countered that it is within a military judge's purview to draw an inference of prejudice based on his or her own general knowledge and experience.
In this case, Farris maintained, d'Auteuil also erred when he failed to do so. Instead, d'Auteuil cited another case, which led to “improperly identifying the concept of prejudice as a fact which must now be proven by the prosecution. But to be clear, prejudice is not a fact to be proven by the prosecution. Whether prejudice exists or not is the ultimate determination to be made by the trier of fact.”
Martin picked up the Crown's arguments in submissions pointing to section 93 of the National Defence Act, which deals with the disgraceful conduct charges. He suggested that a new standard of testing is needed for the analysis of the impact such conduct has and that a new trial would be warranted to seek that.
Letourneaux said this case is about a military criminal evidence case. The question is whether the evidence introduced at trial demonstrated whether the comments were made in circumstances legally sufficient to criminalize his conduct under sections 93 and section 129, which governs conduct to the prejudice of good order and discipline.
“This issue, as this court recognizes, is not to determine whether these comments were acceptable. They clearly were not,” he submitted.
“The question here is whether his conduct should be criminal.”
The panel members questioned both sides extensively throughout their submissions. They reserved their decision.
Col. Bruce MacGregor, national Director of Military Prosecutions, attended the session.
“I think the court martial appeal court took great interest in the issues and they took as much time as they felt was necessary to canvas the concerns on both sides and I look forward to a very reasoned and thoughtful decision in the months to come from the court martial appeals court on both Section 93 and Section 129 of the National Defence Act,” MacGregor said after the hearing.
“This is a further illustration of the level of seriousness that our prosecution service puts into both support of victims within the Canadian Forces and as well as bringing persons that are alleged to have committed a sexual misconduct to be held accountable.”