R. v. Brady

R. v. Brady Collection Court Martial Appeal Court Date 2004-12-03 Neutral citation 2004 CMAC 3 Report citation 6 CMAR 347 File numbers CMAC-475 Decision-makers Pelletier, J.D. Denis; Russell, James; Phelan, Michael L. Decision Content Date: 20041203 Docket: CMAC-475 Citation: 2004 CMAC 3 CORAM: PELLETIER J.A. RUSSELL J.A. PHELAN J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and WARRANT OFFICER A.J. BRADY Respondent Heard at Ottawa, Ontario, on October 25, 2004. Judgment delivered at Ottawa, Ontario, on December 3, 2004. REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: RUSSELL J.A. PHELAN J.A. Date: 20041203 Docket: CMAC-475 Citation: 2004 CMAC 3 CORAM: PELLETIER J.A. RUSSELL J.A. PHELAN J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and WARRANT OFFICER A.J. BRADY Respondent REASONS FOR JUDGMENT PELLETIER J.A. INTRODUCTION [1] Warrant Officer Brady (WO Brady) was charged under the Code of Service Discipline (the Code) as a result of using a Canadian Forces credit card on two occasions to purchase computer software for his own use. When he appeared before the Standing Court Martial to answer to the charges, he objected to its jurisdiction on the ground that as a member of the Canadian Forces on Class A Reserve Service, the Code only applied to him if he was "on duty". While the purchases in question were made in the course of restocking office supplies for his unit, a secondary duty assigned to WO Brady, he did not ask for, nor did he receive, any pay from the Canadian Forces for the time spent obtaining supplies. The transaction occurred outside his regular parade hours and WO Brady was not in uniform at the time. As a result, WO Brady argued that he was not on duty at the material time and therefore not subject to the Code. [2] The Military Judge hearing the case agreed with him and terminated proceedings against him for lack of jurisdiction. Her Majesty the Queen has appealed that decision to this Court. The issue raised by the appeal is the extent to which members on Class A Reserve Service are subject to the military justice system when they perform military functions on a voluntary unpaid basis. JUDICIAL HISTORY [3] WO Brady was charged with "stealing, when entrusted by reason on his employment, with the custody, control or distribution of the thing stolen" contrary to section 114 of the National Defence Act, R.S.C. 1985, c. N-5 (the NDA). The particulars of the two charges are as follows: Charge 1: In that he, on or about 10 February 2000, at or near the City of Vancouver, British Columbia, when employed as a bandsman and so entrusted with the custody and control of DND Unity Acquisition MasterCard 5550 0700 xxxx xxxx stole approximately $34.99 from the Department of National Defence by using said MasterCard for personal use. [The last eight digits of the credit card number have been withheld as a precaution against credit card fraud.] ... Charge 3: In that he, on or about 17 January 2001, at or near the City of Langley, British Columbia, when employed as a bandsman and so entrusted with the custody and control of DND Unit Acquisition MasterCard 5550 0700 xxxx xxxx stole approximately $29.95 from the Department of National Defence by using said MasterCard for personal use. [4] WO Brady was also charged twice with conduct to the prejudice of good order and discipline as provided in section 129 of the NDA. The particulars of those charges are the same as those in respect of the charges under section 114 of the NDA. [5] At trial, WO Brady admitted the following facts: 1. During February 2000 and January 2001, WO Brady was employed as a bandsman and was entrusted with DND Unit Acquisition MasterCard 5550 0700 xxxx xxxx (the "MasterCard"). 2. On 10 February 2000, at the City of Vancouver, BC, WO Brady used the MasterCard to purchase computer software, at a price of $34.99, for his personal use. The Canadian Forces paid the MasterCard bill and the Canadian Forces were not reimbursed for the amount of the purchase until WO Brady recently made restitution. 3. On 17 January 2001, at the City of Langley, BC, WO Brady used the MasterCard to purchase computer software at a price of $29.95 for his personal use. The Canadian Forces paid the MasterCard bill and the Canadian Forces were not reimbursed for the amount of the purchase until WO Brady recently made restitution. 4. WO Brady's purchases using the MasterCard for personal use on the dates of 10 February 2000 and 17 January 2001 were acts prejudicial to good order and discipline. [6] This Court was advised that the admission as to conduct prejudicial to good order and discipline was made so as to allow the Standing Court Martial to dispose of the matter summarily in the event that the Court found that it had jurisdiction. [7] The only witness to testify was Captain Van Slyke, the Officer Commanding WO Brady's unit, who testified as to the organization of the unit and the discharge of various functions: ... Q. Understood. You've described a relatively small unit, how does your unit perform its normal functions beyond? I'm going to rephrase. Regarding both the performance of music as well as the rest of the organization, how does your unit perform those tasks? A. By doing the best we can with very little in the way of support. We have no Class "B", no RSS, no day staff. We run the entire thing on Class "A", volunteer time, doing it at work while we should be doing something else. We just do the best we can with the very limited resources we have. Q. So how do you apportion your resources to the necessary tasks, for example the clerical staff or support staff and so on? A. We have no clerical staff. Q. So how do you perform those duties? A. We pick it up as a secondary duty. My primary clerical staff is a tuba player. We divide the band up into different departments: stores, music library, ops, training, transport, et cetera, and have various NCOs in charge of those with subordinates under them. [8] Captain Van Slyke testified that WO Brady was responsible for stores: .. Q. What was his role in that respect? A. Basically to oversee the store staff. Our store is primarily involved with band equipment and uniforms, stuff that's specific to us, so, basically recap on the charge cards. He tended to do the PP&S purchases, that kind of thing. [9] The Unit Acquisition MasterCard whose use gave rise to the charges was issued to WO Brady in the following circumstances: Q. You've mentioned something about acquisition cards, what are you describing? A. The government, I believe they were MasterCard at the time, that had a spending limit and allowed us to go and purchase at Staples for example instead of going through the supply system and waiting six months. Q. And why did you have those credit cards? A. They had been issued to us through the headquarters, here. We simply used them instead of working through the supply system as we had been doing previously. [10] Captain Van Slyke described the procedure for the use of the Unit Acquisition MasterCard as follows: ... Q. What was the process in place for purchases using those credit cards back in 2000 and 2001? A. The individual would go out, make that purchase, bring the receipt back and it would be matched up against the charge card statement. It would be section 34'd* by a supervisor and OK'd for payment. *This is a reference to section 34 of the Financial Administration Act which requires certification that goods or services have been received before payment is authorized. [11] In cross-examination, Captain Van Slyke testified as to the entries in the Reserve Force Basic Attendance Register on the dates the purchases were made. He testified that WO Brady did not sign the register and therefore was not paid for service on February 10, 2000. On the other hand, he did sign the register on January 17, 2001, and was paid for six hours service commencing at 19:00 hours. The evidence established that the purchase made on that date was made in the early afternoon. As a result, WO Brady received no pay for the time spent purchasing supplies for his unit. [12] The issue of jurisdiction arises because of section 60 of the NDA which specifies who is subject to the Code: 60. (1) The following persons are subject to the Code of Service Discipline: ... (c) an officer or non‑commissioned member of the reserve force when the officer or non‑commissioned member is (i) undergoing drill or training, whether in uniform or not, (ii) in uniform, (iii) on duty, (iv) [Repealed, 1998, c. 35, s. 19] (v) called out under Part VI in aid of the civil power, (vi) called out on service, (vii) placed on active service, (viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence, (ix) serving with any unit or other element of the regular force or the special force, or (x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces; 60. (1) Sont seuls justiciables du code de discipline militaire_: ... c) les officiers ou militaires du rang de la force de réserve se trouvant dans l'une ou l'autre des situations suivantes_: (i) en période d'exercice ou d'instruction, qu'ils soient en uniforme ou non, (ii) en uniforme, (iii) de service, (iv) [Abrogé, 1998, ch. 35, art. 19] (v) appelés, dans le cadre de la partie VI, pour prêter main‑forte au pouvoir civil, (vi) appelés en service, (vii) en service actif, (viii) à bord d'un navire, véhicule ou aéronef des Forces canadiennes ou dans - ou sur - tout établissement de défense ou ouvrage pour la défense, (ix) en service dans une unité ou un autre élément de la force régulière ou de la force spéciale, (x) présents, en uniforme ou non, à l'exercice ou l'instruction d'une unité ou d'un autre élément des Forces canadiennes; [13] It was common ground that the only disposition which could apply to WO Brady's situation was subparagraph 60(1)(c)(iii) "on duty" ("de service"). The Military Judge rejected the appellant's argument that a member on Class A Reserve Service performing a secondary duty on his own time, i.e., during a period for which he was not being paid by the Canadian Forces, was on duty: ... In the case of a reservist on Class "A" Reserve Service, the rate and condition of pay is set out on the basis of the period of service or instruction being performed and as it is referred in the Compensation and Benefits Instruction, on the period of duty or training. By nature, Class "A" service is part-time and rigorously structured. There is no unpaid Class "A" service. Military service in Canada is always remunerated. Whether someone is fairly compensated for the work he or she performs is another issue. Whether someone is so dedicated that he performs tasks at home, on his own time, and for no remuneration or compensation is also another issue. However, when members of the reserve choose willfully and voluntarily to perform tasks that are in part one or more of their military secondary duties, on their own time, this initiative does not make them on duty for the purpose of being subject to the Code of Service Discipline. For a reservist, being on duty cannot be dissociated from the type of service, either Class "A", Class "B" or Class "C" reserve service he is performing at the time and compensated pursuant to Treasury Board Directives or in accordance with Treasury Board Directives. Everything else is volunteer work or dedication, unlike the member is of the Regular Force. ... The use of that [Unit Acquisition] card, on his own time, in order to perform at least in part one of his military duties, did not make him "on duty". (A.B., at p. 64-65.) [14] The Military Judge concluded that he had no jurisdiction over WO Brady and terminated the proceedings against him. THE POSITION OF THE PARTIES [15] Counsel for the appellant argued that the issue before the Court was simply one of statutory interpretation using the approach set out in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, where the Supreme Court of Canada said: [26] In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings... [Citations omitted.] [16] Counsel for the appellant argued that the grammatical and ordinary sense of a word or phrase is the meaning actually understood by a reader upon reading the word or expression in its immediate context. The dictionary mandated for use in interpreting the Queen's Regulations and Orders (QR&0), for terms not specifically defined, is the Concise Oxford Dictionary in English and Le Petit Robert in French. The Concise Oxford Dictionary defines "on duty" as "engaged in one's regular work" while the Merriam-Webster's Collegiate Dictionary defines the same expression as "engaged in or responsible for an assigned task or duty". Counsel argued that WO Brady was engaged in his military duty, albeit a secondary duty, when he attended at the vendors in question and purchased supplies for his unit. Since he purchased items for his personal use in the course of discharging his military duty, he was "on duty" and therefore subject to the Code. [17] Counsel also argued that when the issue was considered in the broader context of the Code, there was no reason to depart from the grammatical and ordinary meaning of the expression "on duty". [18] Finally, counsel took the position that the Military Judge erred in concluding that there was no unpaid military service in Canada. He pointed to the following examples of service without pay: - a member of the Reserve Force who is also a member of the public service can elect to receive a civilian salary (presumably at his regular rate of pay) during a period of duty or training with the Reserve Force. (Canadian Forces Administrative Order (CFAO) 203-6) - officers of the Cadet Instructors List may elect to perform military duty without pay. CFAO 49-6 at para.'s 20 to 22. - NDHQ INSTRUCTION ADM(PER) 2/93 deals with voluntary service by members of the Reserve Force and clearly contemplates such service. [19] Taking all of this together, the appellant's position is that the Military Judge's conclusion that there is no unpaid Class A Reserve Service was clearly wrong and ought to be set aside. Since that conclusion was the foundation of the Military Judge's finding that WO Brady was not on duty, it must also be set aside. [20] Counsel for the respondent argued that there was no basis in the NDA for the notion of secondary duty, at least as it relates to the Code or to the entitlements which flow from "on duty" status. He argued that the conditions of service of the members of the Reserve Force are highly structured. By way of example, he pointed to a number of Canadian Forces Administrative Orders (CFAO) and Defence Administrative Orders and Directives (DAOD) dealing with pay and various entitlements for members of the Reserve Force. In his view, the only exception to paid service was with respect to Cadet Instructors as set out in Appendix 2 to Annex A to NDHQ INSTRUCTION - ADM(PER) 2/93. For all of those reasons, counsel urged the Court to dismiss the appeal. ANALYSIS [21] I take the reasoning behind the appellant's reliance on dictionary definitions to be the following: "On duty" means "engaged in one's regular work". WO Brady was engaged in his regular work. Therefore WO Brady was "on duty". [22] This reasoning redirects the inquiry from whether WO Brady was on duty to whether he was engaged in his regular work. But, in a military environment, the question as to whether one is on duty or not can be answered just as easily as the question as to whether one is engaged in one's regular work. Furthermore, the definition assumes that one is only on duty when engaged in one's regular work whereas the notion of "on duty" can extend to extraordinary or unusual assignments. Consequently, it is more appropriate to focus on the question of "on duty" directly rather than on a proxy for that question. [23] While the expression "on duty" is not defined in the NDA, it is nonetheless used in other parts of the Act. For example, the offence of drunkenness carries a lower penalty if the member is not on duty at the time: 97. (1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non‑commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed. [Emphasis added.] 97. (1) Quiconque se trouve en état d'ivresse commet une infraction et, sur déclaration de culpabilité, encourt comme peine maximale un emprisonnement de moins de deux ans, sauf s'il s'agit d'un militaire du rang qui n'est pas en service actif ou de service - ou appelé à prendre son tour de service -, auquel cas la peine maximale est un emprisonnement de quatre‑vingt‑dix jours. [Non souligné dans l'original.] [24] Similarly, members of the Canadian Forces who are on duty enjoy certain immunities in terms of tolls and duties: 261. (1) No duties or tolls, otherwise payable by law in respect of the use of any pier, wharf, quay, landing‑place, highway, road, right‑of‑way, bridge or canal, shall be paid by or demanded from any unit or other element of the Canadian Forces or any officer or non‑commissioned member when on duty or any person under escort or in respect of the movement of any materiel, except that the Minister may authorize payment of duties and tolls in respect of that use. [Emphasis added.] 261. (1) Aucun péage ou autre droit légalement imposé pour l'usage de jetées, appontements, quais, débarcadères, routes, emprises, ponts ou canaux n'est normalement exigible d'une unité ou d'un autre élément des Forces canadiennes ou d'un officier ou militaire du rang en service, ou d'une personne sous escorte, non plus que pour tout transport de matériel. Le ministre peut toutefois en autoriser le paiement. [Non souligné dans l'original.] [25] The expression "on duty" is also used in the QR&O: 4.05 - VISITS TO BASES, UNITS AND ELEMENTS An officer visiting a base, unit or element on duty shall report to the officer in command before proceeding with the object of the visit. ... 16.01 - WITHHOLDING OF AND RECALL FROM LEAVE ... (3) An officer or non‑commissioned member recalled to duty under paragraph (2) ceases to be on leave and is on duty during the period of the journey from the place from which he is recalled to his place of duty and during the period of the return journey if he resumes leave immediately after completion of the duty for which he was recalled. ... 17.04 - WHEN UNIFORM WORN (1) Unless the Chief of the Defence Staff otherwise directs, an officer or non‑commissioned member: (a) on duty shall wear uniform; and (b) not on duty may wear civilian clothes. [Emphasis added.] 4.05 - VISITE AUX BASES, UNITÉS ET ÉLÉMENTS Un officier en visite à une base, une unité ou un élément en service commandé se présente à l'officier commandant avant de s'occuper de l'objet de sa visite. ... 16.01 - REFUS DU CONGÉ ET RAPPEL ... (3) Un officier ou militaire du rang rappelé au service en vertu de l'alinéa (2) cesse d'être en congé et est placé en état de service durant le voyage depuis l'endroit d'où il est rappelé jusqu'à son lieu de service ainsi que durant le voyage de retour s'il reprend congé immédiatement après l'accomplissement du service pour lequel il a été rappelé. ... 17.04 - QUAND L'UNIFORME DOIT ÊTRE PORTÉ (1) A moins que le chef d'état‑major de la défense n'en dispose autrement, un officier ou militaire du rang : a) qui est en service porte l'uniforme; b) qui n'est pas en service peut porter la tenue civile. [Non souligné dans l'original.] [26] As can be seen from this survey of the NDA and the QR&O, members of the Canadian Forces have many reasons to know whether they are on duty or not. It is a concept which must be current and meaningful to members since it requires them to govern themselves accordingly on a daily basis, i.e., whether one is required to wear a uniform or not. If "on duty" is not defined in the NDA or the QR&O, it must necessarily be defined at a lower level of authority, since it is inconceivable that members, or the chain of command, would have no standard by which to determine whether a member was on duty. And since Parliament declined to define "on duty", it is not implausible to suggest that it was content to adopt, where the notion of "on duty" arose, the definition used by the Canadian Forces for operational purposes. That definition will necessarily be found in documents having a lesser legal status than the NDA or the QR&O, but so long as they define "on duty" status in a way which is consistent with the NDA, there is no reason why that definition of "on duty" cannot be incorporated into subparagraph 60(1)(c)(iii) of the NDA. [27] In the case of WO Brady, the document which defines his status is NDHQ INSTRUCTION - ADM(PER) 2/93, a document put before the Court by counsel for the appellant who argued that it refuted the Military Judge's conclusion that there is no unpaid Class A Reserve Service. It is true that the document shows that there can be unpaid Class A Reserve Service. It sets out the conditions under which a member on Class A Reserve Service undertaking voluntary unpaid service will be considered to be on duty. While this refutes the Military Judge's thesis as to unpaid service, it also effectively disposes of this appeal. WO Brady did not meet the conditions stipulated in NDHQ INSTRUCTION - ADM(PER) 2/93 and, as a result, would not be considered to be on duty at the material time. [28] In tendering NDHQ INSTRUCTION - ADM(PER) 2/93 counsel for the appellant asserted that the Military Judge and, by extension, this Court could take judicial notice of NDHQ INSTRUCTION - ADM(PER) 2/93 under rule 15(2) of the Military Rules of Evidence which provides as follows: ... 15. (2) A court shall, whether or not requested to do so by the prosecutor or the accused, take judicial notice of the contents of, but not of the publication or sufficiency of notification of, proclamations, orders in council, ministerial orders, warrants, letters patent, rules, regulations or by‑laws made directly under authority of a public Act of the Parliament of Canada or of the legislature of a province of Canada, including but not limited to QR&O and orders and instructions issued in writing by or on behalf of the Chief of the Defence Staff under QR&O 1.23. ... 15. (2) Une cour doit, qu'elle en soit requise ou non par le procureur à charge ou l'accusé, prendre judiciairement connaissance de la teneur, mais non de la publication ou de la suffisance de leur notification, des proclamations, décrets du Conseil, ordonnances ministérielles, mandats, lettres patentes, règles, règlements ou statuts administratifs, établis, rendus ou émis directement sous l'autorité d'une loi publique du Parlement du Canada ou de la législature d'une province du Canada, y compris les ORFC mais non limités à ces derniers, ainsi que des ordres et instructions donnés par écrit par le chef de l'état‑major de la défense ou en son nom sous le régime de l'article 1.23 des ORFC. [29] Under the circumstances, I take judicial notice of NDHQ INSTRUCTION - ADM(PER) 2/93. [30] By its terms NDHQ INSTRUCTION - ADM(PER) 2/93 deals with the administration of Class A, B, and C Reserve Service: ... 5. This instruction applies to all sub-components of the Reserve Force. Sections which are unique to specific sub-components are identified as such. This instruction: a) designates the categories of Reserve Force training and duty which may be performed within the provisions of QR&O 9.06 and 9.07; ... c) prescribes the administrative procedures, reporting of attendance and allotment and control of funds for Class A and B Reserve Service; d) describes the conditions and procedures under which Voluntary Service Without Pay by a Member on Class A Reserve Service and Voluntary Service and Training by a Member on Class B or C Reserve Service may be permitted; ... [31] The appellant asserts that WO Brady was on duty because he was discharging a military duty, albeit on a voluntary unpaid basis. The subject of Voluntary Service Without Pay by a Member on Class A Reserve Service is dealt with in Annex D of the INSTRUCTION which stipulates that voluntary service without pay may be authorized by a Commanding Officer, subject to the admonition that this facility is not to be abused. The types of duty for which voluntary service without pay can be authorized are specified and include administrative and logistic duties. The INSTRUCTION sets out the procedure by which voluntary service without pay is to be recorded in the Reserve Force Basic Attendance Register. When all of these conditions are satisfied, the member is considered to be on duty for the period of the voluntary service and, as a result, is entitled to pay (if funding subsequently becomes available), transportation, rations, a disability benefit if injured, and a death benefit if death occurs while on duty. [32] The relevant portions of Annex D are set out below: 1. This section applies to Reserve Force members on Cl A Res Svc [Class A Reserve Service] only. For regulations applicable to Cl B or C Res Svc [Class B or C Reserve Service] see Part II. 2. All members of the Primary Reserve shall receive pay for the time spent on authorized training, administration and courses. The practice of authorizing voluntary service without pay for these purposes shall not be permitted. However, voluntary service without pay for the purpose of supervising or completing administrative or logistic duties may be permitted but must not be abused. It should only be performed by offices and NCMs [non-commissioned members] who cover key establishment positions responsible for the effective management of the unit and its critical functions, e.g., Command, Training, Logistic/Administrative and Personnel functions within the unit. ... 6. Members who are authorized to perform voluntary service without pay shall be placed on Cl A Res Svc. 7. Commanders of Commands or delegated authority shall authorize this type of service. ... 9. CF 895, Reserve Force Basic Attendance Register Unit Training - Class "A" Reserve Service, shall be used to record attendance and to establish duty status. It shall be entitled "Administrative and Logistic Duty" ... followed by the notation "Performed as Voluntary Service Without Pay" and signed by the approving authority for Cl A pay. These records of attendance shall be maintained in such a manner that if funds become available, members may be paid in part or for all the service performed. The attendance thus recorded shall be posted to Form CF 896 using Code "O". 10. When the conditions and procedures listed above have been satisfied, members concerned shall be considered to be on duty and may be entitled to: a. rations, quarters and transportation, where applicable; b. medical care at public expense under QR&O 34.07; c. disability compensation under QR&O 210.72; and d. death gratuity under QR&O 205.73. [Emphasis added.] [33] There are very specific criteria to be satisfied in order for a member on Class A Reserve Service to be considered on voluntary unpaid service and therefore on duty. Those criteria were not met in the case of WO Brady. There was no specific authorization on the part of his Commanding Officer, Captain Van Slyke. While the type of duties undertaken was perhaps within the scope of the INSTRUCTION, it is clear that the Reserve Force Basic Attendance Register was not completed so as to reflect that voluntary unpaid service was being undertaken when the offences are alleged to have occurred. By the terms of the INSTRUCTION, WO Brady would not have been eligible for any of the incidents of "on duty" status such as pay, transportation and rations. I find that he was not on duty at the time of the commission of the offences with which he is charged. [34] Given that, at the material time, WO Brady was not on duty for purposes of NDHQ INSTRUCTION - ADM(PER) 2/93, and given that nothing in NDHQ INSTRUCTION - ADM(PER) 2/93 is inconsistent with the NDA, I conclude that WO Brady was not on duty within the meaning of subparagraph 60(1)(c)(iii) of the NDA and therefore not subject to the Code of Service Discipline. Consequently, the Military Judge was correct in concluding that he had no jurisdiction to try WO Brady under the Code. [35] Therefore, the appeal should be dismissed. "J.D. Denis Pelletier. J.A. "I agree, James Russell" "I agree, Michael L. Phelan" COURT MARTIAL APPEAL COURT OF CANADA NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: CMAC-475 STYLE OF CAUSE: Her Majesty the Queen v. Warrant Officer A. J. Brady PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: October 25, 2004 REASONS FOR JUDGMENT BY: PELLEITER J.A. DATED: December 3, 2004 CONCURRED IN BY: RUSSELL J.A. PHELAN J.A. APPEARANCES: Major Rob Holman FOR THE APPELLANT Lieutenant-Colonel J.M. Dugas FOR THE RESPONDENT SOLICITORS OF RECORD: Office of the Judge Advocate General Ottawa, Ontario FOR THE APPELLANT Director of Defence Counsel Services Ottawa, Ontario FOR THE RESPONDENT