A former Canadian Forces officer has been convicted by a court-martial, according to
this report from
CTV News. Excerpt:
Todd Bannister entered the plea Tuesday following opening statements in his second court martial on the charges.
Bannister was originally acquitted in February 2018, but in May 2019 the Court Martial Appeal Court of Canada overturned the verdicts and ordered a new court martial.
Bannister was accused of making inappropriate sexual comments to a female cadet when she was 18 years old and again when she was 19.
According to court documents, the statements made would not constitute a criminal offence under the Criminal Code, but the question was how they would be viewed under the National Defence Act.
The comments suggested the young woman have sex with Bannister.
Should the armed forces have jurisdiction following separation from the service?
I am not particularly bothered by the idea of a court martial trying someone who has been released as long as there is a genuine military reason to exercise jurisdiction. That seems to be the case here. The offences Capt Bannister was tried for went directly to his duties as a commissioned officer and for the good of the Cadet movement, it was necessary to show that the system could deal with this kind of misconduct. In fact, the military justice system was the only way to deal with it, since what he did was not criminal. I am more bothered by the fact that he eventually pleaded guilty to "conduct to the prejudice of good order and discipline", contrary to s. 129 NDA. The prosecution alleged that his comments were prejudicial to good order and discipline because they were contrary to a Cadet Administrative and Technical Order (CATO). Section 129(2) NDA provides that a violation of an order, regulation or instruction published for the guidance of the CF or part of it, is an act, conduct, disorder or neglect to the prejudice of good order and discipline.The QR&O are unequivocal on this point. When the charge alleges that the conduct is prejudicial because it violates an order, instruction or regulation, the prosecutor must prove that the accused had knowledge of the order, or that it was properly published in accordance with the guidelines specified in QR&O, so that the accused can be deemed to have knowledge of the order. There was a long line of trial decisions that held that when the prosecution proceeds under s. 129(2) NDA they are bound to prove that the accused had actual knowledge of the order, or that the order was sufficiently notified in accordance with QR&O. If the prosecution failed to prove actual knowledge or sufficient notification, they did not get a second kick at the can. The accused must be acquitted.
ReplyDeleteThat all changed with the decision of the CMAC in R. v. Winters 2011 CMAC 1, in which, for the very first time, the court overturned an acquittal and ruled for a charge relying on s. 129(2) NDA the prosecution could still try to prove that the conduct was prejudicial, even in the absence of proof that the order was sufficiently published and notified. The CMAC did not mention any of the case law to the contrary.
The fruits of Winters can be seen in the Bannister case. It appears that the version of the CATO that the prosecution introduced at trial was out of date. He should never have been convicted on the charge as it was laid.
I have no sympathy for Capt Bannister. What he did was clearly incompatible with his duty as an officer, and if the charge had properly drafted, with no reference to any particular order, there could be no objection to his conviction. However, I am a great believer in the principle that the prosecution must be forced to prove the charge as laid, not some other charge that he might have laid if he had done his homework better.