Conduct to the prejudice: need there be proof of actual prejudice?

In an interesting decision, the Court Martial Appeal Court of Canada, on an appeal by the government, has held that the prosecution need not prove actual prejudice where the offense is conduct to the prejudice of good order and discipline. The case is R. v. Golzari, 2017 CMAC 3. Justice Richard Mosley wrote for a unanimous court:

[75] The military judge had also erred in applying the lesser standard when he took judicial notice of the effect of the accused’s remarks. At paragraph 11, the Court in Jones noted: 

The issue was whether, in the circumstances of this particular case, the appellant’s conduct did prejudice good order and discipline in that the remarks tended to bring a superior into contempt. 

[Emphasis in the original]. 

[76] However, a close reading of Jones demonstrates that the Court was careful to emphasize that prejudice need not be confined to a physical manifestation of injury to good order and discipline. At paragraph 7, the Court stated: 

Proof of prejudice can, of course, be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. The standard of proof is, however, proof beyond a reasonable doubt. 

[77] This language suggests that prejudice will be proven, beyond a reasonable doubt, so long as the totality of the circumstances supports the finding that the conduct in question would likely result in prejudice to good order and discipline. Since the Court in Jones left the window open to infer prejudice from the circumstances, I agree with the Appellant that “prejudice” encapsulates conduct that “tends to” or is “likely to” result in prejudice. 

[78] Prejudice in its ordinary grammatical sense means “harm or injury that results or may result” (Concise Oxford English Dictionary). The addition of the words “to the” before “prejudice” incorporates an element of risk or potential and the expression, read as a whole, does not require that harmful effects be established in every instance. Though evidence of actual harmful effects may exist, it is not required for conduct to be punished in the context of military discipline. Military discipline requires that conduct be punished if it carries a real risk of adverse effects on good order within the unit; this is more than a mere possibility of harm. If the conduct tends to or is likely to adversely affect discipline, then it is prejudicial to good order and discipline. 

[79] I also agree with the Appellant that in most instances, the trier of fact in a Court Martial should be able to determine whether the proven conduct is prejudicial to good order and discipline based on their experience and general service knowledge: Smith, above, at 164. 

[80] There may be cases beyond the scope of common military experience and knowledge where it will be necessary for the prosecution to tender evidence of specific circumstances which create the prejudice. That was not the case here. The effect of the military judge’s ruling was to impose a requirement for evidence of an order or direction that CAF members must cooperate with security guards when entering a base, even when that base is on high alert because of attacks on military personnel.

The judgment of acquittal was overturned and a new trial ordered before a different military judge.