Canadian soldier charged with feeding cannabis cupcakes to artillery unit during live-fire exercise

[dimsum]

Reddit claims it's a simple mistake: two batches, one with pot, one without, and she brought the wrong ones to work.

But that happened in 2018, right? Recreational use of cannabis wasn't legal until 2019...?

Edit: No, it was legalized Oct 2018 but this was in July. Same issue.

 

[dapaterson]

Speaks to mens rea - if it was an accident without intent, the administration of a noxious substance charges must fail (cc 245).

...must resist temptation to make joke about this taking place during the dog days of summer, since it happened in Gagetown, not Shilo...

 

[ModlrMike]

I've just read through a number of the cases, and most are making the 11(d) argument. The CF really needs to sort out how judicial independence relates to military judges, such that they retain their impartiality. I recognize that it is difficult to be subordinate to the CSD, and CDS, while remaining fully independent. I'm sure this will go to the Supreme Court at some point.

 

[SeaKingTacco]

Reddit claims it's a simple mistake: two batches, one with pot, one without, and she brought the wrong ones to work.

Doesn’t matter. You play stupid games, you win stupid prizes.

In other words, what she intended to do might make difference in sentencing, but won’t make much of a difference at trial.

 

[SeaKingTacco]

I've just read through a number of the cases, and most are making the 11(d) argument. The CF really needs to sort out how judicial independence relates to military judges, such that they retain their impartiality. I recognize that it is difficult to be subordinate to the CSD, and CDS, while remaining fully independent. I'm sure this will go to the Supreme Court at some point.

I would argue that creating military trials division of federal court, where all of the military judges are seconded to work under the supervision of the Chief Judge there, would largely solve the problem.

Since military judges are GiC appointments, the CDS is not involved. Make the appointment last until age 55, then they retire from the military but are free to continue as a judge anywhere else that will have them. Any judicial misconduct or criminal code misconduct gets handled the same way as they handle any other judge screwing up.

My 2 cents.

 

[dapaterson]

Doesn’t matter. You play stupid games, you win stupid prizes.

In other words, what she intended to do might make difference in sentencing, but won’t make much of a difference at trial.

To the contrary, "administration of a noxious substance" requires mens rea, the guilty mind. To prove that offence there must have been intent to make people stoned. If it was an accident, those charges fail. The 129s, on the other hand, likely would not fail for that reason. (Though if DMP got too creative, they could have some other fatal defect...)

 

[SeaKingTacco]

To the contrary, "administration of a noxious substance" requires mens rea, the guilty mind. To prove that offence there must have been intent to make people stoned. If it was an accident, those charges fail. The 129s, on the other hand, likely would not fail for that reason. (Though if DMP got too creative, they could have some other fatal defect...)

It would take a judge to buy that story. I have sat through a few court martials: the judges weren't born yesterday.

 

[CBH99]

I ended up discussing this at work yesterday with some colleagues who got a good chuckle out of it.

If it wasn’t a live fire, and in uniform - I could chuckle at it just being a silly albeit irresponsible prank. Poor kid probably didn’t mean any harm, but was still poor judgement nonetheless.

Learn. Grow. Mature. Outgrow the mindset from when it happened (3 yrs ago roughly?) Hopefully this kid didn’t ruin her entire future with this.

My colleagues had suggested perhaps with the amount of time that has passed since it happened, possible Charter issues, etc etc - she may end up walking away wiser (hopefully) and legally fairly unscathed. 🤷🏼‍♂️

How the system is supposed to work, and how it works, doesn’t always seem to line up. So who knows. It’ll be a fun one to follow

 

[brihard]

To the contrary, "administration of a noxious substance" requires mens rea, the guilty mind. To prove that offence there must have been intent to make people stoned. If it was an accident, those charges fail. The 129s, on the other hand, likely would not fail for that reason. (Though if DMP got too creative, they could have some other fatal defect...)

Further to that: if the straight crim code charges fail and the resulting convictions are all NDA, the accused may avoid a criminal record. Last I checked, criminal records for Code of Service Discipline convictions are dependent on the severity of sanction. That may have changed of course.

But yeah, men’s rea could make a very big difference for the accused in this one.

 

[Haggis]

I understand there needs to be due process, but the member is alleged to have given gave everyone drugged cupcakes, is this really something that needs to take 3+ years to resolve?

FTFY. No verdict has been rendered yet.

 

[CBH99]

Any judicial misconduct or criminal code misconduct gets handled the same way as they handle any other judge screwing up.

Quick question, and I don't mean to derail the thread at all. Just a 'very brief detour' if you all will allow me...

But how does the system handle a judge screwing up in regards to either judicial misconduct or criminal code matters?

From what I've observed (and while I am involved in investigations on behalf of Alberta SOLGEN, I am NOT a police officer and haven't had a ton of court experience yet outside of simply attending as a witness and leaving after) - most judges seem pretty untouchable?

 

[Haggis]

Further to that: if the straight crim code charges fail and the resulting convictions are all NDA, the accused may avoid a criminal record. Last I checked, criminal records for Code of Service Discipline convictions are dependent on the severity of sanction. That may have changed of course.

But yeah, men’s rea could make a very big difference for the accused in this one.

I find it interesting that there are no CCC or CDSA charges related to cannabis possession given that the alleged offence occurred prior to the Cannabis Act coming into force and the "zero tolerance" intent of of DAOD 5019-3 in force at the time. I guess it's possible that an AR may have been initiated pursuant to DAOD 5019-3 which is not public knowledge.

 

[brihard]

I find it interesting that there are no CCC or CDSA charges related to cannabis possession given that the alleged offence occurred prior to the Cannabis Act coming into force and the "zero tolerance" intent of of DAOD 5019-3 in force at the time. I guess it's possible that an AR may have been initiated pursuant to DAOD 5019-3 which is not public knowledge.

To get a conviction they would likely need a forensic drug lab to confirm the substance. That’s rare for cannabis. Not saying cannabis never gets sent off for that, but the juice is seldom worth the squeeze. Straight possession of cannabis is pretty chintzy. And in this case it’s possible it was all consumed.

 

[Mills Bomb]

I find it interesting that there are no CCC or CDSA charges related to cannabis possession given that the alleged offence occurred prior to the Cannabis Act coming into force and the "zero tolerance" intent of of DAOD 5019-3 in force at the time. I guess it's possible that an AR may have been initiated pursuant to DAOD 5019-3 which is not public knowledge.

When the Cannabis Act came into force the government also granted pardons for prior cannabis possession charges. There was no automatic removal of those criminal records, however, several hundred Canadians did apply for the pardon and most were granted. I believe this may be why there are no charges related to cannabis possession even if it was technically illegal at the time.

 

[Haggis]

To get a conviction they would likely need a forensic drug lab to confirm the substance. That’s rare for cannabis. Not saying cannabis never gets sent off for that, but the juice is seldom worth the squeeze. Straight possession of cannabis is pretty chintzy. And in this case it’s possible it was all consumed.

There must have been some analysis done to determine the existence of the alleged noxious substance in order to form grounds for the s.245(1)(b) charge. Otherwise, the defence could raise " it was a bad batch of brownie mix".

 

[FJAG]

Quick question, and I don't mean to derail the thread at all. Just a 'very brief detour' if you all will allow me...

But how does the system handle a judge screwing up in regards to either judicial misconduct or criminal code matters?

From what I've observed (and while I am involved in investigations on behalf of Alberta SOLGEN, I am NOT a police officer and haven't had a ton of court experience yet outside of simply attending as a witness and leaving after) - most judges seem pretty untouchable?

You are dealing with very distinct issues:

1 If a military judge "screws up" with respect to a decision in the course of the matter of a case then the recourse is an appeal to the Court Martial Appeal Court;

2. If the judge becomes infirm, commits some misconduct, fails to perform his/her duties, involved in conduct incompatible with his/her duties or becomes physically or medically unfit and does not resign then the MND may make a request in writing to the Military Judges Inquiry Committee (Which is made up of the Chief Justice and three justices of the CMAC) to determine if the judge should be removed from office and make a recommendation to that effect to the Governor in Council. (see NDA s 165.32(1) to (8); and

3. If the judge commits an act which could be either a CSD offence or another offence under civilian law then charges can be laid against him and he could be tried either in a military court or civilian court as appropriate. (obviously the CSD offence currently has some possible issues as a result of the recent matters respecting the Chief Trial Judge which I don't believe have been adequately addressed yet.)

🍻

 

[Halifax Tar]

Evidence lost in case of soldier accused of feeding cannabis-laced cupcakes to gunners, lawyer says​

https://www.cbc.ca/news/politics/lost-evidence-case-canadian-accused-drugging-gunners-field-exercise-1.6096693?fbclid=IwAR3z3_HGu6dDNAJZ2-4q-5VxSS2si5w5IWboRqUIoY06XtCERaRysGDQM28

 

[trigger324]

Evidence lost in case of soldier accused of feeding cannabis-laced cupcakes to gunners, lawyer says​

https://www.cbc.ca/news/politics/lost-evidence-case-canadian-accused-drugging-gunners-field-exercise-1.6096693?fbclid=IwAR3z3_HGu6dDNAJZ2-4q-5VxSS2si5w5IWboRqUIoY06XtCERaRysGDQM28

“Seventeen months required to discover it is disturbing to say the least…There is something lacking there. It could be a lack of expertise. It could also be incompetence, obviously.”

 

[OldSolduer]

“Seventeen months required to discover it is disturbing to say the least…There is something lacking there. It could be a lack of expertise. It could also be incompetence, obviously.”

Case dismissed? FJAG - is this a possibility?

 

[rmc_wannabe]

Case dismissed? FJAG - is this a possibility?

I will let FJAG give the final word on that as an expert, but:

If they have no way to establish mens rhea, no other proof outside hearsay and conjecture, and now a possible issue with lost or damaged evidence...

If I were a defense lawyer, I would be putting a strong case forward for dismissal based on a lack of evidence.

If they do go forward with it, I would love to be a fly on the wall to see the prosecution go forward without any evidence past he said/she said.